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United States v. Bostwick

APPEAL from the Court of Claims.

This was a suit by Thomas R. Lovett, trustee of Mrs. Louisa Fletcher, against the United States, to recover the rent of and for damages to certain real estate and premises situated in the District of Columbia, and known as Kalorama.

The Court of Claims found the following facts:--

Thomas R. Lovett, as trustee of Mrs. Louisa Fletcher, was, on the seventeenth day of August, 1861, seised in fee of said premises, containing about ninety-one acres, a dwelling-house with wings, measuring in all one hundred and fifty by forty feet, a large stable, and a frame building, with a garden, lawns, and walks, a fence all around the premises, and a substantial wall, about a quarter of a mile long, from Rock Creek to the lodge gate on Boundary Street, and trees of various kinds, and shrubbery.

In consequence of application made to him for the lease of the premises to the United States for a hospital, by General Mansfield, Lovett authorized the following writings, marked 1 and 2:--

'GENERAL,-Inclosed is a note of terms for the mansion and lower grounds of Kalorama.

'The upper grounds contain about seventy acres, which may be occupied by the quartermaster for horses and wagons, or whatever else may be desired, at the rent of $100 per month.

'Respectfully,

'CHARLES F. FLETCHER,

'For THOMAS R. LOVETT, Trustee.

'TO GENERAL MANSFIELD, B. G. &c.'

'No. 2.

'KALORAMA, Aug. 17, 1861.

'GENERAL MANSFIELD:

'SIR,-I offer to the government, for the purposes of a hospital, that part of the place known as Kalorama, comprising the house and porter's lodge, together with about thirty acres of land immediately surrounding and including both sides of Rock Creek, bordering the same, upon the following terms:--

'The lease to be for the term of three years, with the privilege to the government to renew the same for three years longer, at the same rent, $450 per month.

'There will be left in the building a portable furnace and hall-stove, for the use of the government. It will be stipulated that the trees and shrubbery on the grounds shall be strictly protected, and any unnecessary injury to the same to be compensated for by the government; the buildings to be kept in repair by the government, and to be left in as good repair as ordinary wear and tear will permit. The grounds having already been occupied by troops, and the fence thereby destroyed, it is expected that the government will renew them, and leave them in good repair at the expiration of the term.

Very respectfully, yours, &c.,

'CHARLES F. FLETCHER,

'For THOMAS R. LOVETT, Trustee.'

Thereafter General Mansfield issued and sent to Lovett the following:--

'HEAD-QUARTERS, DEPARTMENT OF WASHINGTON,

'WASHINGTON, Aug. 17, 1861.

'As soon as vacated, within two weeks the United States will hire the whole property of Thomas R. Lovett, trustee of Mr. Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot, and all his land and privileges, for $500 per month, for the period of one year, with the privilege of keeping it at least three years, if desirable for all purposes.

'MANSFIELD, B. C., &c.'

Under the agreement above made the United States entered upon and occupied the said premises specified in General Mansfield's order, from Aug. 23, 1861, to Sept. 30, 1867, inclusive.

For rent of said premises the United States paid to the said Lovett $500 per month, from Aug. 23, 1861, to June 30, 1862; and for each monthly payment the petitioner signed a receipt, the form of which was as follows:--

'The United States to Thomas R. Lovett, Trustee, Dr.

'1862. For rent of Kalorama, occupied as hospital, from

June 1 to June 30, 1862, at $500 per month $500.

'I certify that the above account is correct and just, that the services were rendered as stated, and that they were necessary for the public service.

E. E. CAMP, Captain, A. Q. M.

'Received at Washington, D. C., the 15th of July, 1862, of Captain E. E. Camp, Assistant Quartermaster United States Army, the sum of five hundred dollars and _____ cents, in full of the above account.

THOMAS R. LOVETT, Trustee.'

For rent of said premises the United States paid to Lovett $250 per month, from July 1, 1862, to Feb. 1, 1865; and for each monthly payment he signed a receipt, in the following form:--

'The United States to Thomas R. Lovett, Trustee, Dr.

'1862. For rent of Kalorama, occupied as a hospital and camp-grounds from July 1 to Sept. 30, 1862, at $250 per month $750.

'I certify that the above account is correct and just, that the services were rendered as stated, and that they were necessary for the public service.

E. E. CAMP, Captain, A. Q. M..

E. E. CAMP, Captain, A. Q. M. D. C., the 9th of October, 1862, of Captain E. E. Camp, Assistant Quartermaster United States Army, the sum of seven hundred and fifty dollars _____ cents, in full of the above account.

THOMAS R. LOVETT, Trustee.'

From the 1st of February, 1865, to Sept. 30, 1867, inclusive, the United States paid for rent of said premises $200 per month; and for each payment received a receipt, in the form annexed.

'The United States to Thomas R. Lovett, Trustee, Dr.

'1867.

'Sept. 30. For rent of Kalorama, as hospital and camp-ground, from Sept. 1, 1867, to Sept. 30, 1867, one month $200.

'I certify that the above account is correct and just, that the services were rendered as stated, and that they were necessary for the public service.

A. P. BLUNT,

'Brevet-Colonel & A. Q. M., U.S. A.

'Received at Washington, D. C., the 30th of September, 1867, of Brevet-Colonel A. P. Blunt, Assistant Quartermaster United States Army, the sum of two hundred dollars and _____ cents, in full of the above account.

THOMAS R. LOVETT, Trustee.'

While the United States occupied the premises from Aug. 23, 1861, to Sept. 30, 1867, the main house was burned; the flower-garden and shrubbery were destroyed; three and one-half miles of fence torn down; a brick wall fifty feet long, nine feet high, and fourteen inches thick torn down, and the bricks used, partly for pavement and partly for building a lime-house, where the United States put clothes for purifying them. Some sheds were torn down. The part of the house not burned, about fifty feet long, was greatly damaged, and the glass, with the sashes, was carried away. Ornamental and shade trees of various kinds were cut down; a stone wall was taken down, and most of it carried away; and stone quarried and gravel dug from a quarry and a gravel-pit on the premises, and carried away. The premises were left in a dilapidated condition, and the house unfit for occupancy. To restore the building and premises to their condition when leased, reasonable wear and tear excepted, would have cost $20,000.

The stone quarried and carried away by the United States amounted to 2,327 perches, and was worth 25 cents per perch $581.

The gravel dug and carried away by the United States amounted to 2,347 yards, and was worth 21 7/10 cents per yard 509.

The stone wall taken down and carried away amounted to 505 perches, and was worth $3.50 per perch 1,767.

The extent and valuation of the damage to the part of the dwelling-house not burned, or to other buildings, the number or the value of the trees cut down, the value of the brick wall or fence destroyed, and the disposition of a fire-proof safe, boiler, stove, and heater, were not shown.

Two regiments were, previous to said written contract, encamped by the United States on the northern part of said premises; and thereon and during such occupation, previous to said contract, about fifteen hundred trees were cut down and a portion of the fencing destroyed by the soldiers of said regiments.

All the injuries to said premises during the occupation thereof, or of any part thereof, either previous to or during said written contract, were done by the military forces of the United States engaged in supressing the rebellion, who were encamped on the premises previous to said written contract, or who occupied them under said contract.

The dwelling-house was used by the United States for a small-pox hospital, and the ground as a camping-ground for soldiers. Seven or eight soldiers who died were buried on the place; and since it was vacated by the United States, Sept. 30, 1867, it has not been rented.

At the time the dwelling-house was burned it was insured by the AEtna Insurance Company and the Firemen's Insurance Company, on two policies of $5,000 each. Those companies adopted as their highest rate of insurance on buildings three-fourths of their cash value. The amount of the insurance, $10,000, was paid to the petitioner for a total loss.

On the 21st of December, 1868, Lovett presented for payment to the United States the following account or bill:--The United States to Thomas R. Lovett, Trustee, Dr.

Oct. 1. To rent of Kalorama, from Aug. 23, 1861, to

A .A. Oct. 1, 1867, 73 months, 8 days, at $500   $36,645.

$27,861.

E. & O. E.

JOHN D. McPHERSON, Attorney, &c.

DEC. 9, 1868.

On Feb. 8, 1870, the following notice was sent to Lovett:--

'WAR DEPARTMENT,

'QUARTERMASTER-GENERAL'S OFFICE,

'WASHINGTON, D. C., Feb. 8, 1870.

'THOMAS R. LOVETT, Esq., Washington, D. C.:

'SIR: You are respectfully informed that your claim as trustee, &c., of the premises known as 'Kalorama,' in this District, has this day been referred to the third auditor of the treasury for the payment of $21,040.42.

'Very respectfully, your obedient servant,

'By order Acting Quartermaster-General,

'JAMES A. EKIN,

'Deputy Quartermaster-General,

'Brevet Brigadier-General U.S. A.

'120-103 Claims.'The facts following were requested by the petitioner.

In October, 1867, the claimant made out and presented to the Secretary of War the following claim:--

  United States to Thomas T. Lovett, Trustee, Dr.

Oct. 1. To whole amount of rent according to contract,

from Aug. 22, 1861, to Oct. 1, 1867,

months, 8 days, at $500 per month $36,645.

Less amount received, from Aug. 23,

per month     $5,145.

From July 1, 1862, to Jan. 31,

From Jan. 31, 1865, to Oct. 1,

1867, at $200  6,400.

portion of mansion    $16,

Less insurance 10,

$32,493.25 Which was by the Secretary indorsed as follows:--

(Indorsed:) '25-1-'70. 120/103 Kalorama. Referred to the Quartermaster-General for investigation and report.

'EDWIN M. STANTON, Secretary of War.

'FEB. 12, 1868.'

On this claim the Quartermaster-General reports as follows:--

'QUARTERMASTER-GENERAL'S OFFICE.

'WASHINGTON, D. C., NOV. 11, 1869.

'Hon. WILLIAM W. BELKNAP,

'Secretary of War, Washington, D. C.:

'SIR,-I have the honor to return the enclosed claim of Thomas R. Lovett, trustee, &c., for rent and repair of premises known as 'Karlorama,' in this city, and for gravel, stone, &c., stated at $32,493.25, referred to this office from the War Department for further report, in connection with the additional evidence presented, and to invite your attention to the full abstract of the case herein.

'I consider the order of General Mansfield taking possession, and directing a monthly payment of $500, and the fact of the claimant receiving and receipting for this amount, sufficient evidence of a contract or lease, and therefore recommend that rent be paid from Aug. 23, 1861, to Oct. 1, 1867, 73 months, 8 days, at $500 per month, amounting to $36,633.33, subject to the deduction of all sums which were paid the claimant for the use of the premises during United States occupancy.

'It is evident from the abstract that injustice was done the claimant in the previous recommendation of Acting Quartermaster-General Rucker, as to the allowance for gravel taken and used.

'I recommend that Mr. Lovett be paid for 2,777 yards (60,250 bushels) of gravel, at the same rate as that allowed by the War Department in the 'Dennison' case, viz., one (1) cent per bushel, amounting to $602.50.

'So much of General Rucker's recommendation as is for repairs, $2,300, and for 2,327 perches of stone, at 25 cents per perch, amounting to $581.75, I recommend to be adhered to.

'Very respectfully, your obedient servant,

'J. C. McFERRAN,

'Deputy Quartermaster-General,

'Acting Quartermaster-General.

This report being examined by an officer of the War Department, he made a report to the Secretary, concluding with the following recommendation:--

'As to the item mentioned in Mr. Lovett's proposition as being in the house, a fire-proof safe, copper boiler, hall-stove, &c., and for which an aggregate charge of $218 is made, Messrs. Allen and Yeatman say that they are unable to determine whether the responsibility for these rests with the Quartermaster's or Medical Department, and the Quartermaster-General does not ask authority to pay them. It is considered, however, that, the responsibility of the Medical Depatment being a matter of doubt, they should be paid for by the same Department as the rest.

'It is recommended, therefore, that the Acting Quartermaster-General be directed to make the payments recommended in his letter of Nov. 11, 1869, and to pay, in addition, the sum of $218 for the items last referred to.'

Upon which the Secretary of War indorsed as follows:--

'Approved:

'WILLIAM W. BELKNAP, Secretary of War.'

Whereupon the Quartermaster-General wrote to Lovett as follows:--

'WAR DEPARTMENT,

'QUARTERMASTER-GENERAL'S OFFICE,

'WASHINGTON, D. C., Feb. 8, 1870.

'THOMAS L. LOVETT, Esq., Washington, D. C.:

'SIR,-You are informed that your claim as trustee, &c., of the premises know as 'Kalorama,' in this District, has this day been referred to the Third Auditor of the Treasury for the payment of $21,080.42.

'Very respectfully, your obedient servant,

'By order of the Acting Quartermaster-General,

'JAMES A. EKIN,

'Deputy Quartermaster-General,

'Brevet Brigadier-General, U.S. A.

'Allowed on request of Lovett. E. G. L.'

The accounting officers of the Treasury disapproved of the recommendation of the War Department, and rejected the claim, except as to the sum of $5,159.99, of which action the claimant was duly advised.

The following letter was received by the Quart ermaster-General:--'WASHINGTON, Jan. 31, 1868.

'To Brig.-Gen. RUCKER, A. Q. M. G., Washington, D. C.:

'GENERAL,-In reference to the accompanying account, I would respectfully state that the place known as 'Kalorama,' lately occupied by the government (a plat of which accompanies this communication), comprises about ninety acres of land. It was hired on the seventeenth day of August, 1861, by Brigadier-General Mansfield, on the part of the government, as a hospital and camp-grounds, by written contract, at a monthly rent of $500, of which contract the following is a copy:--

"HEAD-QUARTERS, DEP'T OF WASHINGTON,

"WASHINGTON, Aug. 17, 1861.

"As soon as vacated, within two weeks the United States will hire the whole property of Thomas R. Lovett, trustee of Mr. Charles F. Fletcher, &c., above, on the following terms, inclusive of his upper lot and all the land and privileges, for $500 per month, for the period of one year, with the privilege of keeping it at least three years, if desirable for all purposes.

"MANSFIELD, Brigadier-General, &c.'

'Possession of the premises was given on the twenty-third day of August, and, on the tenth day of October following, the contract was filed in the office of Captain E. E. Camp, A. Q. M., and by him entered on the roll by order of Brigadier-General Van Vliet.

* *  *  *  *

'I am, respectfully,

'THOMAS R. LOVETT,

Trustee, &c., Mount Airy, Philadelphia, Pa.

As conclusions of law, the court found,--

That the letter of Charles Fletcher, for Thomas R. Lovett, trustee, dated Aug. 17, 1861, addressed to General Mansfield, as qualified by General Mansfield's reply, dated Aug. 17, 1861, and with that made a contract of lease subsequently acted on by the parties, by the terms of which the United States were bound to repair the premises in case of their damage by fire, and to release them in as good repair as ordinary wear and tear would permit.

That under said contract and under the tenancy between the parties the United States were liable for injuries to the premises, in the nature of waste.

That the claimant is not entitled to damages for the use of the premises as a small-pox hospital by the United States.

That the claimant is barred of all claims for reductions of rent by his receipts in full given for such rents.

That the United States were not entitled to be credited with $10,000 paid to the claimant by insurance companies on policies of assurance obtained and paid for by him for his benefit.

That the report of the officers of the Quartermaster's Department, that $21,040.42 were due to the claimant, approved by the Secretary of War, and ratified by the War Department to the claimant, was not binding and conclusive on the United States.

That the claims of the petitioner for loss by fire and damage by acts of waste were not barred by the Statute of Limitations.

There was a judgment of $20,000 in favor of the claimant; from which both parties appealed to this court.

Lovett having died pending the suit, Charlotte Bostwick, his administratrix, was substituted in his stead.

Mr. Assistant Attorney-General Smith, for the United States.

The contract under which the United States entered into the occupancy of the premises was completed by the verbal or implied assent of Lovett to the proposition, contained in General Mansfield's letter of Aug. 17, 1861. Lovett's letter of that date was a mere offer, not assented to, and constitutes no contract; for there must be not only a proposal, but an acceptance thereof. 1 Story Contr., sect. 490; Hazard v. ''N. E. Ins. Co.'', 1 Sumn. 225; Andrews v. Garrett, 6 C. B. N. S. 269; Tuttle v. Love, 7 Johns. 471.

Where a proposition is made, with certain conditions or limitations, the acceptance must correspond to it in terms; otherwise, it is a new proposition, requiring the subsequent assent of the other party to render it binding. 1 Story, Contr., sect. 503; Slaymaker v. Irwin, 4 Whart. 369; Honeyman v. Marryatt, 6 Ho. of L. Cas. 112.

Lovett, in his letter of Jan. 31, 1868, to General Rucker, expressly declares General Mansfield's letter of Aug. 17, 1861, to be the contract under which the premises were occupied.

General Mansfield's letter was not a lease, but a mere proposition to occupy, which, when accepted, constituted a verbal letting, and, under the first section of the Statute of Frauds, a tenancy at will.

There was no liability to rebuild in case of fire. Taylor's Land. & Ten., sects. 101, 146; Leach v. Thomas, 7 Car. & P. 327; Horsefall v. Mather, Holt, 7; Brown v. Crump, 1 Marsh. 567; Rook v. Worth, 1 Ves. Sen. 462; Wainscott v. Silvers, 13 Ind. 497; Warner v. Hitchins, 5 Barb. 666.

The claimant is bound by his assent to the reduction of the rent, especially as the government continued in optional occupancy, upon the faith of his acquirescence. United States v. Clyde, 13 Wall. 35.

As the government was not liable to rebuild, it was not liable to make repairs.

Teneral Mansfield's proposition was to take the property 'for all purposes,'-a term broad enough to include a small-pox hospital, or any other use to which the government might see fit to put it.

Mr. J. D. McPherson, for Bostwick.

The court below did not err in taking the whole correspondence to constitute the contract. Addison, Contr., c. 1, sect. 2, p. 41.

If one enter under an agreement for a lease, and pay rent, the relation of landlord and tenant arises, and the tenant holds under the terms of the agreement, as if embodied in a lease. 1 Platt on Leases, c. 4, sect. 4, pp. 611, 612.

The mere fact that the defendant, modifying certain terms, restates them, does not exclude others not modified or restated.

Out of the relation of landlord and tenant there arises on the part of the tenant an implied contract to use the leased premises in a tenant-like manner. White v. Nicholson, 4 Man. & Gr. 95; 43 E. C. L. 58; Nave v. Berry et al., 22 Ala. 382; Addison, Contr., sect. 711.

A general covenant to repair is binding on the tenant, whatever may be the cause of dilapidation. 2 Platt on Leases, p. 186; Bullock v. Demmet, 6 T. R. 650; Buckworth Canal Co. v. Pritchard, id. 750; Phillips v. Stevens, 16 Mass. 246; 3 Pars. Contr., c. 3, p. 503; Taylor's Land. & Ten., sect. 343; Addison, Contr., sect. 711.

title: United States v. Bostwick


text: Talk:United States v. Bostwick

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

title: Talk:United States v. Bostwick


text:
United States v. Bostwick/Opinion of the Court

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

In the determination of this cause, it is necessary at the outset to ascertain definitely the terms of the contract under which the United States occupied the property of the petitioner. On the one hand, it is claimed that the proposition of Mr. Lovett was accepted by General Mansfield with modifications, and that all the stipulations suggested by him are included in the contract as finally entered into, unless modified or rejected in terms by the note of General Mansfield. On the other hand, it is contended by the United States that the note of General Mansfield, instead of being an acceptance of the proposition, was a rejection of it, with an offer of new terms, which, when acceded to by Mr. Lovett, embraced all there was of the contract as made. The latter, we think, is the true construction of the correspondence. We know that, when a contract is entered into by correspondence, the whole correspondence must be considered in determining what the parties have agreed to; but we also know that both parties must assent to a proposed agreement before either is bound by it. Here General Mansfield has nowhere indicated a willingness to accept any of the terms offered him, but, rejecting all, has made a new offer of his own. No reference whatever is made by him to any of the special stipulations suggested by Mr. Lovett. All these are laid aside, and he states the terms upon which the United States will hire the property. The words 'as above,' where they occur in his note, are used to designate the property, not to extend the offer. In short, Mr. Lovett proposed his terms, and General Mansfield his. Mansfield's were accepted, but Lovett's were not.

This being the case, the contract is one by which Mr. Lovett agreed to let, and the United States to hire, the premises described for the term of one year, with the privilege of three, at a rent of $500 a month, and without restriction as to the use to which the property might be put. The United States agree to nothing in express terms, except to pay rent and hold for one year.

But in every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use the property as not unnecessarily to injury it, or, as it is stated by Mr. Comyn, 'to treat the premises demised in such manner that no injury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the wilful or negligent conduct of the lessee.' Com. Land. & Ten. 188. This implied obligation is part of the contract itself, as much so as if incorporated into it by express language. It results from the relation of landlord and tenant between the parties which the contract creates. Holford v. Dunnett, 7 M. & W. 352. It is not a covenant to repair generally, but to so use the property as to avoid the necessity for repairs, as far as possible. Horsefall v. Mather, 7 Holt, 9; Brown v. Crump, 1 Marsh. 569.

There are in this contract no stipulations to take the place of or in any manner restrict this implied obligation on the part of the United States growing out of their relation to the petitioner as his lessees. They had the free and unrestricted right to use the property for any and all purposes, but were bound to so conduct themselves in such use as not to cause unnecessary injury. Whatever damages would necessarily result from a use for the same purpose by a good tenant must fall upon the lessor. All that the relation of landlord and tenant implied in this particular is, that the tenant, while using the property, will exercise reasonable care to prevent damage to the inheritance. His obligation rests upon the maxim sic utere tuo ut alienum non laedas. If he fails in this, he violates his contract, and must respond accordingly.

The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them. No lease in form was ever executed in this case; but the contract, followed by the delivery of possession and occupation under it, is equivalent for the purposes of this action to a lease duly executed, containing all the stipulations agreed upon.

Such being the agreement of the parties, it remains only to consider the questions arising under it, as they appear in the record.

1. As to the rent. The United States hired for a year absolutely, at the agreed rent of $500 a month, and occupied during the whole of that term. They therefore, by their agreement, were expressly bound to pay rent at that rate for the whole of the year. This they have paid in full to June 30; but after that, until the end of the year, Aug. 23, 1862, their payments have been only at the rate of $250 a month. Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration. It is not found that there was any new consideration in this case. All that appears is, that an account was made out for the rent from July 1 to Sept. 30, at the new rate, and that this account was receipted by Mr. Lovett after payment. Upon this finding, therefore, in the absence of any thing more, showing that the reduction in the rent of the first year was part of the agreement to continue the lease beyond the year upon new terms, the petitioner will be entitled to judgment for rent at the rate of $250 a month, from June 30 to Aug. 23, 1862, that being the balance remaining after deducting payments made.

After the end of the first year the case is different. The United States were not bound absolutely to keep the premises for a longer term than one year. After that, they could make new terms, or leave. The acceptance by Mr. Lovett of the reduced rates from that time, without objection, is conclusive evidence of his assent to a modification of the original agreement in this particular, in consideration of the continued occupancy by the United States. Having thus secured the occupancy, he cannot now object to the agreement under which it was obtained.

2. As to the use for a small-pox hospital. Mr. Lovett originally offered the property to the government 'for the purposes of a hospital;' and all the receipts for the rent expressly state that the property was being so occupied. No objection to such an occupancy was ever made; and, if there were nothing more, the presumption would be that the lessor expected the property was to be used for any and all hospital purposes that the necessities of the government for the time being might require. But the note of General Mansfield is broad enough to cover such an occupancy, for he expressly states that the hiring is to be 'for all purposes.' No recovery can be had upon this specification of claim.

3. As to the destruction of a part of the buildings by fire. There was, as has been seen, no express agreement to repair in the lease. The implied obligation is not to repair generally, but to so use the property as to make repairs unnecessary, as far as possible. It is in effect a covenant against voluntary waste, and nothing more. It has never been so construed as to make a tenant answerable for accidental damages, or to bind him to rebuild, if the buildings are burned down or otherwise destroyed by accident. In this case it has not been found, neither is it claimed in the petition, that these premises were burned through the neglect of the United States. No judgment can, therefore, be rendered against the United States on this account.

4. The destruction of the trees and fences, and the digging and carrying away of gravel and stone. Whatever injury was done to the property during the occupation previous to the agreement for the lease cannot be recovered for in this action. Mr. Lovett's proposition included an undertaking on the part of the United States to make good this loss; but his proposition was not accepted, and the case stands as if it had never been made. The obligations of the United States under the lease, as to the preservation of the property, relate only to the condition of the premises as it was when the term commenced. All damage done before that is clearly 'damages. . . by the army and navy. . . engaged in the suppression of the rebellion,' and on that account not recoverable in the Court of Claims. 13 Stat. 381. But damage after the lease commenced, and while the United States were actually in possession under it, occupies a different position. That comes within the contract by which the rights of the parties in this action are to be determined. As has been seen, that does not bind the United States to make good any loss which necessarily results from the use of the property, but only such as results from the want of reasonable care in the use. It binds them not to commit waste, or suffer it to be committed. If they fail in this, they fail in the performance of their contract, and are answerable for that in the Court of Claims, which has jurisdiction of 'all claims founded upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein.' Rev. Stat. § 1059; 10 Stat. 612, § 1. If there had been in this lease an express agreement to repair, certainly it could not have been successfully claimed that the Court of Claims would not have had jurisdiction to award damages for a failure to rebuild after the fire, even though the fire was caused by the soldiers while in the hospital for treatment. But the implied obligation as to the manner of the use is as much obligatory upon the United States as it would be if it had been expressed. If there is a failure to comply with the agreement in this particular, it is a breach of the contract, for which the United States consent to be sued in the Court of Claims. All depends upon the contract. Without that, the jurisdiction does not include actions for damages by the army; with it, damages contracted against may be recovered as for a breach of the contract.

It appears in the finding that during the occupancy under the lease ornamental trees were destroyed; fence and walls torn down, and the materials used for sidewalks and the erection of other buildings, or carried away; and that stone was quarried and gravel dug from a stone-quarry and gravel-pit on the premises, and taken away. This was voluntary waste, and within the prohibition of the implied agreement in the lease. For this the Court of Claims can award compensation in this action. The amount of this damage has not been found.

5. The account, as stated in the quartermaster-general's office. This does not conclude the United States. It was a mere adjustment of the accounts by one of the bureaus in one of the departments of the government, rejected by the accounting officers of the treasury, and never paid. Certainly this can have no binding effect upon the United States.

The judgment must be reversed, and the cause remanded, with instructions to render judgment against the United States for the rent of the premises from June 30 to Aug. 23, 1862, at the rate of $250 per month, and for the damages done to the property other than the destruction of the house by fire during the occupation of the United States under their lease, except to the extent that the same necessarily resulted from the use of the premises by the soldiers of the army of the United States for the purposes of a hospital and camp-ground, and it is

So ordered.


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


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County of Leavenworth v. Barnes

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. J. W. English for the plaintiffs in error, and by Messrs. Stillings & Fenlon for the defendant in error.

MR. JUSTICE HUNT delivered the opinion of the court.

title: County of Leavenworth v. Barnes


text: Talk:County of Leavenworth v. Barnes

title: Talk:County of Leavenworth v. Barnes


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County of Leavenworth v. Barnes/Opinion of the Court

This action is brought upon certain bonds and coupons issued by the county of Leavenworth, Kansas.

It is found by the judge, who tried the cause without a jury, that the bonds were issued by the county, and that the plaintiff below was the owner and holder, and purchased them without actual notice of the defences set up, and for value paid.

The defences to the recovery upon the bonds resolve themselves into the following:--

First, The bonds recite that they are issued under the provisions of the act of the State of Kansas, approved Feb. 10, 1865, entitled 'An Act to authorize counties and cities to issue bonds to railroad companies.' They bear date of July 1, 1865, and are payable on the first day of July, 1875.

This act authorized the counties to make subscription to the capital stock of a railroad company, and to issue its bonds in payment therefor, payable within thirty years, at a rate of interest not exceeding seven per cent. A previous assent of the qualified electors of the county, at an election, of which twenty days' notice should be given, was required.

It is contended that without this act there was no authority in the county to issue the bonds in suit, and that the act was never legally passed. The objection is that the yeas and nays were not called and entered on the journal, on the final passage of the bill; and, again, that the enrolled bill was not signed by the presiding officer of the senate.

The recent decision upon this identical statute by the Supreme Court of Kansas, in a suit against this county, relieves us from all embarrassment upon this question. It gives effect and construction to one of its own statutes, and, according to well-settled rules, will be followed by this court. The question is discussed at much length, many local authorities in support of their conclusion are cited, and the act is held to have been legally passed, and to be a binding act. We must hold in accordance with this decision.

Second, It appears by the record that on the second day of January, 1865, the board of county commissioners called an election for the twenty-first day of that month, for the submission to the electors of the question of subscribing to the stock of the Leavenworth and Missouri-Pacific Railroad Company; that an election was held on that day, at which seven hundred and eighty-four votes were cast in favor of the subscription, and one hundred and eleven against it; that on the eighteenth day of April the chairman of the board was directed by the board to make the subscription; and that on the first day of July the bonds were issued in payment thereof.

It is now objected that the bonds are invalid, for the reason that the only vote taken by the electors of the county was before the passage of the act authorizing it. The law in question appears, from the printed volume of the statutes of Kansas, to have been approved on the tenth day of February, 1865, and to have been published on the fourteenth day of the same month.

The act we are considering authorizes the counties into, from, or near which any railroad is or may be located, to subscribe to the capital stock thereof, and to issue its bonds in payment of such subscription. It proceeds to say: 'But no such bonds shall be issued until the question shall be first submitted to a vote of the qualified electors of the county at some general election, or some special election, to be called by the board of county commissioners by first giving twenty days' notice in some newspaper published and having general circulation in the county. . . . If a majority of the votes cast at such election shall be in favor of issuing such bonds, the board of commissioners of the county shall issue the same.'

The road in question was located and built in and through the county of Leavenworth.

The fourth section of the act contained this provision:--

'In case the board of commissioners of any such county. . . have heretofore submitted to the electors of such county the question of issuing bonds to any railroad company, and at such election such electors voted to issue such bonds, such board are hereby authorized to issue such bonds and subscribe for stocks not exceeding the amount as provided in the first and third sections of this act.' Stat. Kan. 1865, p. 42.

In the present case, a majority of the electors voting declared themselves in favor of the subscription and issue of the bonds. This is all that is required either by the first or the fourth section. The same rule is intended to be applied in each case.

This is an explicit authority from the legislature to the county board to adopt any previous expression of the electors of their willingness to make such subscription. It is conclusive upon the point under consideration.

Third, It is objected, again, that the bonds were issued to the Leavenworth and Missouri-Pacific Railroad Company, whereas it is alleged that no such company was in existence on the twenty-first day of January, 1865, when the election was held, or on the first day of July, when the bonds were issued.

This company was organized in 1860, under the name of the Missouri River Railroad Company, and on the 18th of April, 1865, it consolidated with another company, increased its capital, and changed its name to that of the Leavenworth and Missouri-Pacific Railroad Company. We suppose this to have been authorized by the statutes of Kansas. Laws 1862, p. 768. We are certainly of opinion that when the parties interested in the two companies are content; when the newly named company has been in operation for ten years; when the county has received and held its stock until 1869; when the same was sold by the county by authority of the legislature,-it is not competent for such a contracting party to say that there was an irregularity in the organization of the company. Bigelow on Estoppel, 464; Moran. v. Commissioners, 2 Black, 722; Zabriskie v. Cleveland, 23 How. 400; Pendleton v. Amy, 13 Wall. 297.

There are some other objections made, but none of them are serious in their character.

Judgment affirmed.


text: Talk:County of Leavenworth v. Barnes/Opinion of the Court


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United States v. Clark (94 U.S. 73)

Submitted Jan. 16, 1877. Decided Jan. 29, 1877.

Insufficient finding of Court of Claims.

Where the Court of Claims does not find the amount of loss for which its judgment was rendered, such judgment will be reversed on account of an insufficient finding.

APPEAL from the Court of Claims.

The petition was filed by the claimant in the court below, to obtain an allowance for a certain sum of money alleged to have been taken from him as Paymaster of the Army of the United States, by robbery.

The case is sufficiently stated by the court.

On the 12th of April, 1873, Clark filed his petition in the Court of Claims praying relief from responsibility, under the act of May 9, 1866, 14 Stat. 44, on account of the loss, by robbery, of funds to the amount of $15,979.87 belonging to the United States, and in his hands as a paymaster in the army. The United States pleaded the general issue and the Statute of Limitations.

The court found the facts as follows:--

1. On the 6th April, 1865, the claimant lost, by robbery, while in the line of his duty as assistant paymaster in the army at Franklin, Texas, a package of government funds. The package was in his official safe at his quarters, and the loss was without fault or neglect on the part of the officer.

2. The claimant, after duly reporting the loss, and making known the facts to his superior officers, credited himself in his next account-current as follows: 'Amount lost by robbery of safe at Franklin, Texas, $15,979.87.' This item of credit was not acted upon by the accounting officers of the treasury until the final revision of his accounts, on the 6th of November, 1871, when it was disallowed, and charged to him as a balance on hand.

3. The robbery was committed in the daytime, by forcibly breaking into the claimant's quarters, during his temporary absence, and then forcibly breaking into the government safe, in which the funds were. Two persons were apprehended and tried by military commission held at the head-quarters of the Department of New Mexico, on the 5th of June, 1865. On the trial the claimant was a witness, and testified as to the amount of the funds stolen. The commission found the prisoners guilty. Its proceedings were duly approved, and its sentence carried into effect.

The claimant, at the time of the robbery, had no clerk or assistant. It appears, from other testimony, that a package of money was in the safe, but the precise amount thereof was known to no person but the claimant. He was of good character, personally and officially, and had always kept regular and exact accounts of the funds in his official custody, and had made due returns in regard to, and properly accounted for, the same. He immediately reported to his superior officers that the funds in that safe were $15,979.87, which was the amount of the loss appearing on his subsequent official reports, and charged against him as deficiency on the final revision and settlement of his accounts by the accounting officers of the treasury.

4. On the 17th of February, 1873, a suit was instituted by the United States, in the Circuit Court of the United States for the first circuit, on the official bond of said claimant, which suit is still pending, to recover the sum of $20,000, claimed to be due from him thereon.

Upon the facts found the court decided as conclusions of law: -

1. The court having ascertained the facts of the loss in this case, and that it was without fault or neglect on the part of the claimant, may render a decree in his favor, as directed by the statute, though the evidence of the amount of the funds lost was entirely circumstantial.

2. The suit having been brought within six years after the claimant's accounts were settled at the treasury, in which he had charged the United States with the amount of the loss, and within six years after such item of credit for the funds so lost was first acted upon by the accounting officers, and consequently within six years from the time when the officer was first held responsible for such loss, the suit is not barred by the Statute of Limitations, though more than six years elapsed between the loss and the bringing of the suit.

Judgment having been rendered for the claimant, the United States appealed to this court.

Mr. Assistant Attorney-General Edwin B. Smith for the appellant.

''Mr. Charles E. Pike and Mr. Thos. H. Talbot'', for appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: United States v. Clark (94 U.S. 73)


text: Talk:United States v. Clark (94 U.S. 73)


text:
United States v. Clark (94 U.S. 73)/Opinion of the Court

Our rules regulating appeals from the Court of Claims require that the record shall contain, among other things (Rule 1, sec. 2):

 * "A finding by the Court of Claims of the facts in the case established by the evidence, in the nature of a special verdict, but not the evidence establishing them; and a separate statement of the conclusions of law upon said facts, on which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as a part of the record."

The Act of Congress, under which this action was prosecuted, requires the Court of Claims to find, among other things, the amount of the loss which had been sustained. This is essential. In the finding of facts set up in this record, the amount of the loss does not appear. It is stated in the judgment as entered in form, and alluded to in the opinion of the court, but is entirely omitted from the special finding, which is to be in the nature of a special verdict, and upon which alone we are to act. The object of the rule is to bring the case here for our action as upon a special verdict, leaving us to apply the law to the facts as found, and not to decide upon the weight of the evidence.

Upon the facts set forth in the special finding, this judgment cannot be sustained, because of the omission to state the amount of the loss. As in our action upon the appeal we do not look beyond the finding, the judgment must be reversed on account of an insufficient finding, and the cause remanded for such further proceedings as law and justice may require.


text: Talk:United States v. Clark (94 U.S. 73)/Opinion of the Court


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Storm v. United States

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. Quinton Corwine for the plaintiff in error, and by Mr. Assistant Attorney-General Smith for the defendant in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Storm v. United States


text: Talk:Storm v. United States

title: Talk:Storm v. United States


text:
Storm v. United States/Opinion of the Court

Errors of the Circuit Court resting in parol cannot be re-examined in this court by writ of error. Instead of that, the writ of error addresses itself to the record; and the rule is, that, whenever the error is apparent in the record, whether it be made to appear by bill of exceptions, an agreed statement of facts, or by demurrer, the error is open to re-examination and correction.

Whatever error of the court is apparent in the record, whether it be in the foundation, proceedings, judgment, or execution of the suit, may be re-examined and corrected; but neither the rulings of the court in admitting or excluding evidence, nor the instructions given by the court to the jury, are a part of the record, unless made so by a proper bill of exceptions. Suydam v. Williamson, 20 How. 433.

Two of the defendants, to wit, Storm and Shrader, entered into a written contract with the assistant quartermaster of the army, acting in behalf of the United States, to deliver at the several places therein mentioned, in and about the harbor of San Francisco, in such quantities and such monthly proportions as the quartermaster should determine, 1,000,000 pounds of barley, 1,000,000 pounds of oats, 2,000,000 pounds of hay, called oat hay, and 500,000 pounds of straw; it being stipulated that the contractors should receive, as payment for the supplies delivered and accepted under the contract, the following prices, in gold coin, or equivalent in legal-tender notes; to wit, $10.65 for each 1,000 pounds of barley, $12.65 for each 1,000 pounds of oats, $5.90 for each 1,000 pounds of hay, and $4.30 for each 1,000 pounds of straw.

Forage and straw to be delivered, it was stipulated, should be of the best quality in the market; and if, in the opinion of the commanding officer at the place of delivery, it was unfit or of a quality inferior to that prescribed by the contract, it was stipulated that a survey should be held by one or more officers, to be designated by the commanding officer, and that the board of survey should have power to reject the whole, or such portions of the same as appeared unfit for issue, or of a quality inferior to the contract.

Supplies of the kind were to be not only of the best quality in the market, but clean and fit for immediate use. In case of failure or deficiency in quantity or quality delivered, power was vested by the contract in the assistant quartermaster or his successor to supply the deficiency by purchase in open market; and the contract provides that the contractors shall pay the difference in cost in gold coin, or its equivalent in legal-tender notes.

Public contractors of the kind are required to give bond with sureties contracts; and the declaration shows that the contractors their contracts; and the declaration shows that the contractors in this case gave bond to the United States, with the other two defendants as sureties, in the sum of $12,000, conditioned that, if the contractors observe, perform, fulfil, and keep the covenants and stipulations of their written agreement, the obligation shall be void; otherwise, to remain in full force and virtue.

Breaches of the conditions occurred, as the United States alleged, and they instituted the present action of debt on the bond against the principals and their sureties. Distinct breaches of the agreement were assigned in the declaration, as fully appears in the record.

Service was made, and the defendants appeared and filed an answer, setting forth the following defences: 1. They deny all and singular the allegations of the declaration. 2. That at the close of December, 1870, there was due and owing to the contractors under the agreement the sum of $1,476.43, for supplies furnished and accepted by the commanding officers at the respective places of delivery. 3. That the contractors up to that time and during that month had delivered all such quantities and proportions of forage and straw as were required by the assistant quartermaster, and of the best quality in the market. 4. That the assistant quartermaster during the whole of that time had funds on hand to pay and discharge the full amount due to the contractors, as contemplated by the agreement. 5. That the quartermaster wrongfully refused to pay the amount due and owing to the contractors, or any part thereof. 6. That the contractors, in consequence of such wrongful refusal and neglect to pay and discharge the amount due and owing to them, on the 3d of January, 1871, personally notified the assistant quartermaster that they elected to treat the agreement as rescinded and abandoned, and that they did not intend to furnish any more supplies under the same.

Subsequently the parties went to trial, and the verdict and judgment were for the plaintiffs, in the sum of $2,615.40. Exceptions were duly filed by the defendants, and they sued out a writ of error, and removed the cause into this court.

Since the case was entered here, the defendants below have filed a brief, as required by the rules of the court; but it does not contain either a statement of the case or an assignment of errors. Such a party, under such circumstances, is not entitled to be heard; but inasmuch as the plaintiffs below have filed a printed brief in the case, without objecting that the defendants have not complied with the twenty-first rule, the court will proceed to examine the questions presented in the bill of exceptions exhibited in the record.

Sufficient appears there to show that the plaintiffs offered the described agreement in evidence to sustain the issues on their part, and that the defendants objected to the introduction of the same, insisting that the agreement was not mutually obligatory, that it was given without consideration, and that it was inoperative and void; but the court overruled the objection, and the agreement was read in evidence to the jury.

Evidence was also introduced by the plaintiffs to prove the quantity and value of the grain, forage, and straw bought in open market by the plaintiffs, by reason of the failure of the defendants to deliver the quantity and quality which they agreed to furnish, in order to show the difference between the contract price and the price paid by the plaintiffs in the open market, and the consequent loss to the plaintiffs, as alleged in their complaint. Inquiries were made of the witness as to the quantities and qualities of the supplies so purchased in behalf of the plaintiffs during the three months next following the time of the attempted rescission of the agreement by the defendants, and the witness gave the price paid for each parcel, and added, that the prices paid were the regular market prices in gold coin, and perhaps a little less than he charged to other customers. He stated, on cross-examination, that sometimes, when he did not have the supplies wanted on hand, he went out and purchased what was necessary to fill the order, and that he usually filled the orders on the same or the following day.

Without entering fully into the details of the testimony, it is proper to remark that he testified that he furnished 69,008 pounds of oats, 77,518 pounds of hay, and 25,789 pounds of straw before the month closed in which the defendants gave the notice of their intention to rescind the contract. In the course of his examination-in-chief the witness gave the name of a firm of whom he bought some hay to fill some one of the orders, and the defendants inquired of whom he purchased the quantity of oats charged to the United States in his account; to which interrogation the plaintiffs objected, and the court sustained the objection and excluded the question.

Due exceptions were taken to the preceding rulings, and the defendants asked the witness if he did not commute with some of the subordinate officers for some portion of the forage to which they were entitled, paying them in money instead of forage, grain, or straw; and, if so, he was asked to state what quantity of such supplies were charged on his books during those three months as having been purchased in open market, which were not so purchased, but were commuted by the witness with the officers, paying them money instead of delivering the required supplies; to which the witness replied that he could tell by looking at his books. He was then requested by the defendants to look at his books and to state what amount of such supplies, within that period, was charged by him which was not purchased in open market and delivered to the United States. Prompt objection was made to the question as irrelevant and immaterial, and it was excluded by the court.

Testimony, undisputed and uncontradicted, was introduced, showing that during the first six months of the year the quartermaster's requisitions for oats, barley, hay, and straw for the military posts named in the agreement were not in excess of the quantity prescribed by law, nor in excess of the quantity required in the requisitions and estimates of the post quartermasters, and that the United States paid for the quantity estimated in such requisitions and no more, and that such payments were only made after receipts and vouchers were received from the proper officer at the military post, showing to the satisfaction of the quartermaster that the requisition had been filled as in the ordinary and usual course of business of the quartermaster's office.

Enough has already been remarked to show that the action is an action of debt founded on the bond given by the defendants to secure the faithful performance of covenants contained in their previously described written agreement. Reference has already been made to all the exceptions taken by the defendants to the rulings of the court during the trial before the jury; but it is also objected in argument here that the bond described in the complaint was not produced at the trial, and that no copy of it was ever filed in the case. Such an objection, if it had been made in the court below, might have been available for the defendants, unless the plaintiffs had overcome it by producing the instrument, or by showing had loss and due search for it without success, and had offered secondary proof of its contents. Parol proof of the contents of a lost instrument of the kind is admissible, provided it appear that proper search has been made for it without success.

Had the defendants intended to insist that the bond should be given in evidence, they should have made that intention known at the trial; and, if not given in evidence, they might have requested the court to direct a verdict in their favor, and, in case their request had been refused, they would have had the right to except to the ruling of the court in refusing their request for instruction. Nothing of the kind was done; and, for aught that appears in the record, it may be that the bond was given in evidence, or, if not, that the defendants waived the right to require its production.

Errors apparent in the record, though not presented by a bill of exceptions, may by re-examined by writ of error in an appellate tribunal; but alleged errors, not presented by a bill of exceptions, nor apparent on the face of the record, are not the proper subjects of re-examination by writ of error in this court.

Parties dissatisfied with the ruling of a subordinate court, and intending to seek a revision of the same in the Appellate, Court, must take care to raise the questions to be re-examined, and must see to it that the questions are made to appear in the record; for nothing is error in law except what is apparent on the face of the record by bill of exceptions, or an agreed statement of facts, or in some one of the methods known to the practice of courts of error for the accomplishment of that object. Suydam v. Williamson, 20 How. 433; Garland v. Davis, 4 id. 131; Steph. on Plead. 121; Slacum v. Pomeroy, 6 Cranch, 221; Strother v. Hutchinson, 4 Bing. N. C. 83.

Two additional remarks should be made respecting the written agreement before proceeding to examine the questions presented in the bill of exceptions: 1. That it was duly executed by the assistant quartermaster and the contractors, under the hand and seal of the respective parties. 2. That it contains the provision that it 'may be terminated at such time as the quartermaster-general may direct,' and that it is made subject to the approval of the department and division commanders.

Substantial breaches of the covenants of the agreement having occurred, the United States brought suit on the bond given to secure its faithful performance; and, when the United States offered the agreement in evidence to support the issues on their part, the defendants objected to its admissibility, insisting that it is a nudum pactum; that it appears on its face that it might have been terminated at any time at the election of the plaintiffs; that it is not mutually binding, and that, inasmuch as it is wanting in that respect, it is without consideration, and is inoperative and void.

Though no such error is assigned in this court, still it is obvious from the course of the argument exhibited in the brief that the defendants intend to maintain the same proposition in this court. Attempt was not made to invalidate the bond in that respect in the court below, nor is any such attempt made here by the defendants. What they do attempt to show is, that the agreement is inoperative, because it contains the provision that it may be terminated at such time as the quartermaster-general may direct, and in consequence of the provision that it is made subject to the approval of the department and division commanders.

Beyond doubt, the written agreement went into operation; and it is not even suggested that the department and division commanders ever expressed any disapproval of its terms and conditions, nor does the record furnish any evidence to raise a doubt that it was fully approved by all whose assent was necessary to give it a binding obligation. Suppose it to be true that the quartermaster-general might terminate it, if he should see fit, it is a sufficient answer to the suggestion to say, that he never did interfere in the matter, and that the contract continued in full force and operation throughout the whole period for which the necessary supplies were purchased by the United States in open market.

Where the defendant has actually received the consideration of a written agreement, it is no answer to an action brought against him for a breach of his covenants in the same to say, that the agreement did not bind the plaintiff to perform the promises on his part therein contained, provided it appears that the promises in question have, in fact, been performed in good faith, and without prejudice to the defendant. Addison on Contr. (6th ed.) 15; Morton v. Burr, 7 Ad. & Ell. 25.

Agreements are frequently made which are not, in a certain sense, binding on both sides at the time when executed, and in which the whole duty to be performed rests primarily with one of the contracting parties. Contracts of guaranty may fall under that class, as when a person solicits another to employ a particular individual as his agent for a specified period, and engages that if the person addressed will do so, he, the applicant, will be responsible for the moneys the agent shall receive and neglect to pay over during that time. The party indemnified in such a case is not bound to employ the party designated by the guarantor; but it he do employ him in pursuance of the promise, the guaranty attaches and becomes binding on the party who gave it. Kennaway v. Trelcavan, 5 Mees. & W. 501.

Cases often arise where the agreement consists of mutual promises, the one promise being the consideration for the other; and it has never been seriously questioned that such an agreement is valid, and that the parties are bound to fulfil their respective stipulations. Miles v. Blackall, 11 Ad. & Ell. N. S. 365; Emerson v. Slater, 22 How. 35.

Such a defence could not be sustained, even if the action was upon a simple contract; but the agreement here is under seal, and the action is an action of debt founded on the bond given to secure the performance of the agreement; and it is an elementary rule, that a bond or other specialty is presumed to have been made upon good consideration, so long as the instrument remains unimpeached. Taylor, Evid. (6th ed.) 103; Lowe v. Peers, 4 Burr. 2225; Dorr v. Munsell, 13 Johns. 431.

Want of consideration is not a sufficient answer to an action on a sealed instrument. The seal imports a consideration, or renders proof of consideration unnecessary; because the instrument binds the parties by force of the natural presumption that an instrument executed with so much deliberation and solemnity is founded upon some sufficient cause. Parker v. Parmele, 20 Johns. 134; 1 Smith, Lead. Cas. (7th Am. ed.) 698; 1 Chitty on Contr. (11th. Am. ed.) 20; Paige v. Parker, 8 Gray, 213; Wing v. Chase, 35 Me. 265; 2 Bl. Com. 446; Fallowes v. Taylor, 7 Term, 473.

Seasonable exception was taken by the defendants to the ruling of the court, excluding the question propounded to the witness called by the plaintiffs, of whom he purchased the quantity of oats which he furnished to the United States. Three grounds are suggested to show that the defendants were entitled to have an answer: 1. That the answer might have affected the credibility of the witness. 2. That the defendants, if the name of the seller of the oats had been given, might have called him as a witness, and perhaps might have proved by him that the price paid was not as great as represented, or that a less quantity than that charged had been delivered. 3. That the answer might have shown that persons had an interest in the sale of the oats who are prohibited by the contract from having any share in furnishing such supplies.

None of the reasons assigned to support the exception are entitled to any weight, when considered in connection with the explanations given in the bill of exceptions. Evidence of an undisputed character had previously been introduced, showing that the requisitions for such supplies were not in excess of the quantity prescribed by law, and that the United States did not purchase and pay for any greater quantity than that specified in the requisitions, and that the purchases were made in the open market, and that the prices paid did not exceed the fair market value of supplies purchased.

Litigants ought to prepare their cases for trial before the jury is empanelled and sworn; and, if they do not, they cannot complain if the court excludes questions propounded merely to ascertain the names of persons whom they may desire to call as witnesses to disprove the case of the opposite party. Courts usually allow questions to be put to a witness to affect his credibility; but it is plainly within the discretion of the presiding judge to determine whether, in view of the evidence previously introduced, and of the nature of the testimony given by the witness in his examination in chief, it is fit and proper that questions of the kind should be overruled, and to what extent such a cross-examination shall be allowed. Sturgis v. Robbins, 62 Me. 293; Prescott v. Ward, 10 Allen, 209; Wroe v. State, 20 Ohio St. 460; 1 Greenl. Evid. § 449.

Purchases to supply deficiency arising from the failure of the contractors to perform their contract were required to be made in open market, in order to ascertain the excess of cost, if any, beyond the contract price; and the bill of exceptions shows that the evidence to prove that the purchases made by the United States were so made was undisputed and uncontradicted. Still, the defendants asked the witness called to prove those facts whether he did not commute with some of the subordinate officers for a portion of the forage to which they were entitled, instead of delivering the same to such subordinate officers, to which no direct answer was given; but when the witness was asked if he could state what quantity of such supplies were charged on his books as delivered, which was adjusted by commuting the same with the subordinate officers, he answered that he could by looking at his books. Prior to that, the witness had stated that the prices charged were regular market prices in gold coin, which is in strict conformity to the terms of the agreement; but the defendants requested the witness to examine his books, and to state what the amount was which had been commuted; to which interrogatory the plaintiffs objected, and the court excluded the question.

Interrogatories calling for immaterial testimony may be excluded in the discretion of the court, as shown by the authorities to which reference has previously been made. Doubt upon that subject cannot be entertained, and it is equally certain that it is error to exclude a question, proper in form, which calls for evidence material to the issue. Difficulty frequently arises in determining whether a particular question falls within the one or the other of these categories; and in solving that doubt, it often becomes necessary, especially in an appellate court, to ascertain what the state of the case was when the question was propounded, and what the effect of the evidence would have been if it had been admitted.

No attempt is made to impeach the fairness of the requisitions made by the quartermaster, or to show that they were greater than the public service required; nor is it contended that the prices paid to supply the deficiencies were higher than the regular market prices in gold coin. What the defendants suggest is, that the agent employed to provide and deliver the deficiency paid some of the subordinate officers in money, instead of delivering the required amount of forage and grain, as he should have done. Both the agent and the subordinate officers in question agreed to the commutation; nor is it suggested that the quartermaster approved the commutation, or that he had any knowledge of the irregular transaction of the agent. Proper charges were made by the agent, and the same were duly paid by the proper disbursing officer.

Viewed in the light of these suggestions, it is clear that no injury resulted to the contractors. They did not suffer by the irregularity, nor is it perceived that it is a matter with which they have any concern, and it certainly furnishes no grounds for reversing the judgment.

Judgment affirmed.


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


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One Hundred and Ninety-Nine Barrels of Whiskey v. United States

APPEAL from the Circuit Court of the United States for the Eastern District of Texas.

This was a libel against one hundred and ninety-nine barrels of distilled spirits seized at Galveston, Texas, March 18, 1867, as forfeited to the United States. The causes of forfeiture alleged are,--

1. That the spirits, being subject to the payment of internal revenue tax, were removed otherwise than into a bonded warehouse, without the payment of the tax.

2. That no lawful or genuine inspector's brand was ever put upon them, and they were removed for sale in fraud of the law, and with intent to evade the payment of the taxes thereon chargeable by law, and were fraudulently and illegally marked and branded.

3. That said barrels of distilled spirits, when found and seized by the collector of internal revenue, had never been inspected, gauged, proved, or marked, as required by law, and were fraudulently and illegally marked and branded.

To this libel a claim and answer were filed by Charles Andre, a resident of Matamoras, Mexico, in which he alleged that all the requirements of the laws of the United States relating to the spirits had been complied with previous to the seizure; that they had been duly proved and marked, gauged, and inspected, and the barrels properly branded by the lawful officers of the United States duly appointed for that purpose; and that all taxes required by law had been paid thereon. He also stated that he purchased the spirits in open market at Matamoras, Mexico, in the regular course of business, between the 1st and 12th of February, 1867; that the same having been delivered to him in Mexico, he applied to the United States collector of duties for the district of Brazos de Santiago for permission to import them in the packages as purchased, which permission was granted; that he accordingly transported them from Matamoras to Brownsville, entered them at the custom-house of that district, and by bond secured the duties thereon according to law, and that he secured from the proper officers of the custom-house the usual certificate given in such cases, and sent the spirits forward to Indianola and Galveston for a market.

The evidence produced by the claimant shows that he entered the spirits at the custom-house upon his importation as of the growth, production, and manufacture of the United States, exported on board of certain vessels named, from New York and New Orleans, upon which no drawback, bounty, or allowance had been allowed, and reimported from Matamoras, Mexico, free; that he executed a bond to the United States for the sum of $73,000, with approved sureties, 'conditioned that proper certificates to show that the articles were manufactured in the United States, and all taxes paid thereon, would be produced within six months thereafter, or that he would pay the customary custom-house duties required upon such articles of foreign manufacture;' that thereupon the proper landing certificate was issued, and the spirits were transferred from the ferry-boat in which they had been imported to the schooner 'Island Belle,' for transportation to Indianola and Galveston.

The evidence offered in support of the libel shows that Andre purchased the spirits at Matamoras, at the price of fifty-five cents per gallon; that they were shipped from New Orleans to Matamoras, June 20, 1866, on the British schooner 'Village Belle,' and, after being duly entered at the custom-house at Matamoras, were landed at that port. The district attorney of the United States then offered in evidence sworn examined copies of the original entry of the spirits by Andre at the Brownsville custom-house, together with sworn and examined copies of the bond given by Andre, and also of the certificates of the collectors of the ports of New York and New Orleans, upon which the bond was cancelled, and proved that the originals of the entry, bond, and certificates were on file at the custom-house in Brownsville, more than a hundred miles distant from Galveston. To the introduction of such copies Andre objected; but the objection was overruled, and they were admitted. The certificates showed shipments from New York to Matamoras, with no record of drawbacks, as follows:--

Oct. 1, 1864, B. G. H., 20 barrels.

Feb. 2, 1865, S. Y., 75 barrels.

Feb. 10, 1865, M. P., 50 barrels.

Jan. 14, 1865,  50 barrels.

March 11, 1865, S.  100 barrels.

And from New Orleans to Matamoras,--

Feb. 4, 1865,

These shipments all corresponded with the specifications in the entry, except that marked S. . In the entry this appeared to have been an exportation in the schooner 'Brazos,' but the certificate showed that it was in the bark 'Mary Schofield.' To explain this discrepancy, Andre made affidavit that in his entry he gave the name of the schooner inadvertently, the fact being that the exportation was in the bark. It is further proved, that, when the spirits were seized in Galveston, the barrels were carefully examined; that many of them appeared to be old molasses barrels; that many had on them the inspection marks of revenue inspectors at New Orleans and at Cincinnati; that the inspection marks, if ever there were any on some of the barrels, had been covered with dirt, and so obscured as to become illegible, but that most of the barrels contained the inspection marks, 'manufactured prior to 1st September, 1866.' Subsequently, when the barrels were taken out of the warehouse and delivered to the claimant, by order of the court, he affixed a new brand on the head of each barrel, to do which he had to wash the heads; and all but fifteen or twenty barrels were found to have been branded 'tax paid.'

Pending the suit, the property was appraised and delivered to the claimant, in accordance with the practice in such cases, upon the execution of a bond with sureties, conditioned to abide and answer the decree of the court in the premises.

Upon this testimony the District Court gave a decree of forfeiture July 21, 1868, and adjudged that the claimant pay into the registry of the court the appraised value of the spirits with interest from that date, and, in default, that execution issue against him and his sureties. From that decree an appeal was taken to the Circuit Court, where a similar decree having been entered May 27, 1874, the claimant appealed here.

Mr. J. M. Burroughs for the appellant.

Mr. Assistant Attorney-General Smith for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.


text: Talk:One Hundred and Ninety-Nine Barrels of Whiskey v. United States


text:
One Hundred and Ninety-Nine Barrels of Whiskey v. United States/Opinion of the Court

The first ground of forfeiture in this case is based upon sect. 45 of the act of July 13, 1866, 14 Stat. 163, which provides, that, upon seizures made for the causes there stated, the burden of proof is on the claimant to show that the requirements of the law have been complied with. It is contended, however, that the passage of the spirits through the custom-house, even though it be duty free, establishes a prima facie case in favor of the claimant, and throws the burden of proof upon the United States. Without stopping to inquire whether this is to or not, it is sufficient to say that as between these parties the prima facie case made in this way has been completely overcome, and the burden again fairly cast upon the claimant.

The prima facie case depends upon sustaining the statement made by Andre in his entry, that the identical spirits seized were exported from New York and New Orleans to Matamoras in the vessels named, without drawback for taxes paid. If this is disproved, the prima facie case as made has been met, and the burden placed where it was before.

The certificates of exportation furnished by Andre to the collector in support of the entry do not identify the spirits exported with those seized, any further than by showing that the marks on the barrels exported correspond with those on the barrels seized. The shipments were all made late in 1864 and early in 1865, and from New York, except five barrels from New Orleans. Against this it appears that nearly or quite all the barrels when seized had upon them the inspection marks, 'manufactured prior to 1st September, 1866,' though the law requiring such marks was not passed until July 13, 1866; that many of the barrels appeared to be old molasses barrels; that many had upon them the inspection marks of revenue inspectors at New Orleans and at Cincinnati; that one witness has sworn that the spirits were actually exported from New Orleans to Matamoras on the British schooner 'Village Belle,' June 20, 1866; and that Andre purchased them at the price of fifty-five cents per gallon.

With this evidence before us, it is impossible to believe that the spirits mentioned in the several certificates of exportation are the same as those that were seized. True, the inspection mark as to the date of the manufacture is as much inconsistent with an exportation from New Orleans June 20, as with the exportation as claimed; but it shows that, if the statements of Andre are true, the inspection marks have been tampered with, and that he may properly be called upon for explanations which he has not given.

The evidence, therefore, as we think, clearly justified a decree of forfeiture upon the first ground alleged in the libel. It is true that the inspection marks, if spurious, may have been placed on the barrels while they were in Mexico, and that, so long as the spirits remained in Mexico, they could not be seized for any violation of law previous to their removal; but it is equally true, that, although there could perhaps be no forfeiture for spurious brands affixed in Mexico, such brands may furnish evidence to be considered in determining whether the goods were subject to seizure for what had transpired in respect to them previous to their removal, and, that when brought again into the United States duty free, they were subject to seizure for any cause that existed before their exportation.

In this view of the case, it is unnecessary to consider the objections raised to a recovery upon any of the other charges in the libel.

The sworn and examined copies of the papers on file in the custom-house were admissible in evidence. So far as the bond and entry are concerned, further proof as to them by the United States was unnecessary, because they had been already sufficiently established by the testimony in behalf of the complainant. The cancellation certificates were admissible as declarations by the complainant in connection with the entry and the prima facie case he insists he had made, and they were required by law to be taken and filed because they were the identical papers Andre was to produce and deliver to the collector in performance of the conditions of his bond. 1 Stat. 663, sect. 28.

The decree of condemnation was rendered in the District Court July 21, 1868, and under the rule in The Diana, 3 Wheat. 58, the interest upon the appraised value was properly calculated and adjudged from that date.

Decree affirmed.

NOTE.-In One Hundred Barrels of Whiskey v. United States, which was argued at the same time and by the same counsel as was the preceding case, MR. CHIEF JUSTICE WAITE, in delivering the opinion of the court, remarked:--

This case differs from the preceding one only in the fact that the barrels were seized at Indianola instead of Galveston, and in that the marshal, instead of delivering to the claimant the whole one hundred barrels upon the order of delivery, handed over only fifty-five, and paid him the proceeds of the sale of the remaining forty-five barrels. As these proceeds amounted to more than the appraised value of the property, for which alone the decree below was rendered, we cannot see how the claimant can now object, because he did not receive the spirits.

For the reasons given in the other case, the decree in this is

Affirmed.


text: Talk:One Hundred and Ninety-Nine Barrels of Whiskey v. United States/Opinion of the Court


text:
Consolidated Fruit-Jar Company v. Wright

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This is a bill in equity filled by the Consolidated Fruit-Jar Company to restrain the alleged infringement by the defendant of letters-patent No. 102,913, issued May 10, 1870, to John L. Mason, for an 'improvement in fruit-jars,' and of which the complainant, by mesne assignments, is the owner. The court below, upon hearing, dismissed the bill; whereupon the complainant appealed here.

The facts are set forth in the opinion of the court.

Mr. John H. B. Latrobe for the appellant.

Mr. George Gifford, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Consolidated Fruit-Jar Company v. Wright


text:
Consolidated Fruit-Jar Company v. Wright/Opinion of the Court

This is a case in equity brought by the appellants to enjoin the appellee from infringing a patent issued by the United States to John L. Mason, on the 10th of May, 1870, 'for an improvement in fruit-jars,' of which patent the complainant is the assignee.

The disclaimer and claim of the patent are as follows:--

'Separately considered, I do not claim a metallic flexible screw-ring or cap, C, for holding a cover on a preserve-jar, nor an external gasket receiving-shoulder upon preserve-jar, except when such gasket-shoulder is at the top of a continuous glass screw; neither do I claim the combination of a screw-ring cap with a packing-ring, so applied to a jar that a portion or the whole of such packing-ring is exposed within the jar, nor when the gasket-shoulder is at the base of the glass screw, as in my patent of 1858; but—

'What I do claim as new, and desire to secure by letters-patent, is—

'The combination, first, of the shoulder, b, to receive a gasket outside and a little below the top of the jar; second, of the cover, B, with the rim, d, extending down outside of the top, to press upon the gasket, C; and, third, of the screw-ring or screw-cap, C, with its screw-threads operating upon those of the jar below the gasket-shoulder,-all substantially as above set forth and described.'

The screw-cap, C, is described in the patent as made of metal.

The answer sets up several defences. Our remarks will be confined to two of them.

1. That there had been 'purchase, sale, and prior use' of the invention 'more than two years prior' to the application for the patent.

2. That the invention was abandoned to the public.

These objections are founded upon the seventh section of the act of 1839. Curtis on Pat. (4th ed.) 696.

The invention was completed in June, 1859. The application for the patent was made on the 15th of January, 1868. The intervening period was between eight and nine years. The two years prior to the application began on the 15th of January, 1866. It is within the limits of the tract of time first mentioned that the facts are to be sought upon which the second point is to be determined, and within the same period, less two years after the 15th of January, 1866, that those relating to the first point must have occurred, in order to avail the defendant.

There is no conflict in the testimony.

In June, 1859, Mason had a model made for his jar and cover, according to his invention. He took the mode to Reed & Co., glass-makers, in Jersey City. They made for him at least two dozen of the jars. When they were done, Mason received five or six of them, and a short time afterwards, the residue. Of the first lot, he gave one to Reed, and one to Fitzgerald, his lawyer. The others he took home. What became of them does not appear. Those of the second and larger lot he certainly sold. His recollection to this effect is distinct. He thinks he received for them three or four dollars a dozen. He does not know what was done with them. The inference is a fair one, that they were used for the purpose for which they were intended. His object in selling was twofold,-to get the money which they yielded, and to test their salability in the market.

The statutory clause upon which the second objection is founded is in the disjunctive. The language is 'purchase, sale, or prior use'. . . 'for more than two years prior' to the application for the patent. The phrase, 'for more,' as thus used, is loose and inaccurate, and is to be understood as if the language were earlier than 'two years prior,' &c., or as if 'for' were omitted from the sentence. This omission would produce the same effect.

The defects specified are also in the singular. It follows that a single instance of sale or of use by the patentee may, under the circumstances, be fatal to the patent; and such is the construction of the clause as given by authoritative adjudications.

In Pitts v. Hall, 2 Blatchf. 235, Mr. Justice Nelson said, 'The patentee may forfeit his right to the invention if he constructs it and vends it to others to use, or if he uses it publicly himself in the ordinary way of a public use of a machine at any time prior to two years before he makes his application for a patent. That is, he is not allowed to derive any benefit from the sale or the use of his machine, without forfeiting his right, except within two years prior to the time he makes his application.' See also American Hide & Leather Co. v. American Tool Co., 4 Fisher, 291; McMillan et al. v. Barclay et al., 5 id. 189; McClurg v. Kingsland, 1 How. 202; Agawam Company v. Jordan, 7 Wall. 583. The result must always depend upon the purpose and incidents accompanying the act or acts relied upon.

If the case stopped here, the facts we have adverted to would be fatal to the patent, upon the ground of the first objection. But there are further facts developed in the testimony which bear upon this as well as the other point.

The model remained in the possession of Reed, one of the glass manufacturers, unnoticed and uncalled for by Mason until 1867. Not knowing where to find Mason, Reed then sold it at auction. The jar Mason had given him was sold at the same time and in the same way. This utter neglect of the model for so long a time is full of significance, and has an important bearing upon the question of abandonment.

No sufficient reason is disclosed in the record why the application for the patent was not made earlier. It was not for want of the necessary pecuniary means on the part of Mason. There is no proof of such want of means; and the contrary is shown by the fact of his getting a patent for a garbage-box in the year 1867, or about that time. Mason's impression is, that when he took the jar to Fitzgerald, in 1859, the latter said that if patented he could not use the invention, because it would infringe earlier patents which he had parted with to others. He was asked when he next saw Fitzgerald. His answer was, 'I think it was a number of years, probably eight or nine years. It was about the time he drew a specification for me for a garbage-box, which I received a patent for.' When pressed to state why he did not apply for the patent earlier, he answered, 'Well, I don't know as I had any reason or cause for not doing so.' It appears that, when the specification for the garbage-box was prepared, Fitzgerald advised that a patent shold be taken out for the fruit-jar. Subsequently, when Mason had concluded to make the application, he went in quest of Fitzgerald, to get him to prepare the requisite papers, and found he was dead. He thereupon engaged the services of other counsel, and the application was made.

In the mean time, large interests had grown up in the way of the manufacture and sale of jars substantially the same with Mason's, and of others more or less like it. He was stimulated to make his application by seeing such jars in the market. He had seen them before Fitzgerald advised him finally to get a patent. Even then he failed to give any directions upon the subject. He reached his conclusion subsequently. Large amounts of money must then have been invested in the business of making and selling such jars by various persons. It is sufficient to mention the case of Rowley, who is defending this suit in the name of Wright, the appellee.

Rowley, in 1864, was selling jars known as the Excelsior. In the spring of 1866 he was called upon by Imlay, who charged that the Excelsior infringed a patent issued to him in 1865, which was for a jar such as the appellee is called to account in this case for selling. He bought from Rowley. Rowley took a license from Imlay, and thereupon commenced making and selling jars made according to Imlay's patent. These jars were nearly identical with those described in the Mason patent. A part of those sold had only glass tops, without the metallic covering, which Mason's patent called for. The residue had such covering. Prior to the beginning of the year 1868 he had sold of the jars with glass tops from two hundred and fifty to four hundred gross, making the minimum thirty-six thousand. Before the same period, he had sold a large number of those with the metallic top, and otherwise the same in construction. Thus, before Mason applied for his patent, and as early as 1866, the public was in possession of the invention in question from sources entirely independent of Mason.

It is enough to say, without recapitulating the facts, that in our judgment the defence of abandonment to the public is also clearly made out.

He who is silent when he should speak must be silent when he would speak, if he cannot do so without a violation of law and injustice to others.

The supineness of the patentee is unexplained and inexcusable. A principle akin to the doctrine of equitable estoppel applies.

Inventors are a meritorious class. They are public benefactors. They add to the wealth and comfort of the community, and promote the progress of civilization. A patent for an invention is as much property as a patent for land. The right rests on the same foundation, and is surrounded and protected by the same sanctions. There is a like larger domain held in ownership by the public. Neither an individual nor the public can trench upon or appropriate what belongs to the other. The inventor must comply with the conditions prescribed by law. If he fails to do this he acquires no title, and his invention or discovery, no matter what it may be, is lost to him, and is henceforward no more his than if he had never been in any wise connected with it. It is made, thereupon, as it were by accretion, irrevocably a part of the domain which belongs to the community at large. The invention here in question is within this category.

Decree affirmed.


text: Talk:Consolidated Fruit-Jar Company v. Wright/Opinion of the Court


text:
Smith v. United States (94 U.S. 97)

ERROR to the Supreme Court of Washington Territory.

Mr. John J. McGilvra for the plaintiff in error.

Mr. Solicitor-General Phillips, contra.

Mr. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Smith v. United States (94 U.S. 97)


text: Talk:Smith v. United States (94 U.S. 97)


text:
Smith v. United States (94 U.S. 97)/Opinion of the Court

It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.

This cause was docketed here Dec. 29, 1870. In due time a brief was filed on behalf of the plaintiff in error, and the cause has been regularly continued at every term since, no one appearing here in person to represent the plaintiff. At this term we dismissed the writ, on motion of the United States, for want of prosecution, but have since reinstated it on motion of the counsel for the plaintiff in error, who now moves to have it set down for argument. This motion we deny, and order that, unless the plaintiff in error submit himself to the jurisdiction of the court below on or before the first day of our next term, the cause be left off the docket after that time. The People v. Genet, 59 N. Y. 80; Leftwich's Case, 20 Gratt. 723; Commonwealth v. Andrews, 97 Mass. 544; see also 31 Me. 592.

Motion to set down the case for argument denied.


text: Talk:Smith v. United States (94 U.S. 97)/Opinion of the Court


text:
Omaha v. Hammond

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. S. A. Strickland for the plaintiff in error, and by Mr. E. Wakely for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Omaha v. Hammond


text: Talk:Omaha v. Hammond

title: Talk:Omaha v. Hammond


text:
Omaha v. Hammond/Opinion of the Court

The defendant in error, plaintiff below, sued the city of Omaha on a contract for the construction of two public wells in the streets of that city. The contract was in writing, and by its terms plaintiff was 'to sink and construct two wells,. . . said wells to be circular, twelve feet in diameter, and to be curbed with a brick wall nine inches in thickness, and arched over in a secure and proper manner, the whole to be completed under the supervision and to the satisfaction of the chief engineer of the fire department of said city.'

For this work the city was to pay plaintiff 'one hundred dollars for each and every one thousand gallons of water which each of said wells shall be capable of producing, and shall produce, within twenty-four hours; the capacity of said wells to be tested by the chief engineer of the fire department of the city of Omaha aforesaid. And upon the report of said officer being made to the council of said city, showing that the wells are completed and satisfactory, and also showing the amount of water that said well or wells will produce in twenty-four hours, the said party of the first part shall be entitled to and shall receive from the said party of the second part the said sum, to be paid in city warrants.'

These extracts from the agreement are all that are necessary to the decision of the case.

The plaintiff proved the construction of the wells under the supervision of the engineer to his entire satisfaction, and his final acceptance of them. But it was also proved that, while the main part of the wells was sunk to the depth of twenty to twenty-three feet of the diameter of twelve feet, the brick curbing of nine inches in thickness, built inside the shaft so sunk, reduced this diameter to ten and a half feet, and that smaller shafts of four or five feet in diameter were sunk below the bottom of the main well to the depth of several feet. These two circumstances constitute the defence of the city.

As to both of them, we think the city is concluded by the action of its own officer, the engineer, who was also, by the terms of the contract, authorized by the parties to it to decide these questions.

It may be conceded that there is room for doubt, whether the wells were to be twelve feet in diameter after they were completed by the building of the curbing, or were to be twelve feet in diameter when the shaft was first sunk, and the nine inch curbing built inside was not to be taken into the account in ascertaining the diameter. The language, we think, rather favors the latter construction. But, if there is an ambiguity, it must be resolved in favor of plaintiff, because the officer of the city, under whose supervision the wells were built, must have adopted this construction, and authorized the plaintiff to build on that view of the contract, as the wells were necessarily built under his immediate supervision and control, and could only have been so built with his approval. Both parties, than, may be said to have adopted and acted on this construction, and are bound by it.

The same principle applies with added force to the smaller shafts sunk deeper than the main ones. There is absolutely nothing in the contract on this subject. The depth of the well, the propriety of auxiliary shafts, or any other matter tending to increase the flow of water, were left absolutely to the engineer. The whole work was to be done under his supervision and to his satisfaction. It is proved that the depth of the main shaft was determined by him in reference to the length of the hose to be inserted in it. And the auxiliary shaft was also sunk under his direction and with his approval. The city cannot now complain that it was done as he directed.

The instructions of the court were in accord with these views, and they are not erroneous because the judge added to this action of the engineer, as binding the city, the further fact of their acceptance and use of the wells. Whether the fact had any significance or not, they were certainly bound by the action of the engineer.

It was also of no consequence that the court refused to instruct the jury 'that if the plaintiff did not construct said wells according to the terms of his contract, he cannot recover, even though the wells have been used by the authorities of the city,' because, as to the only matters in dispute, the engineer had by the contract been constituted the arbiter, and had decided in the plaintiff's favor.

Judgment affirmed.

title: Omaha v. Hammond/Opinion of the Court


text: Talk:Omaha v. Hammond/Opinion of the Court


text: West Wisconsin Railway Company v. Foley

title: West Wisconsin Railway Company v. Foley


text: Talk:West Wisconsin Railway Company v. Foley