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Wright v. Tebbitts/Opinion of the Court

The errors assigned upon this record are, in substance, that the contract given in evidence is illegal:--

1. Because it is an assignment of a one-tenth interest in the claim of Wright, and not 'freely made and executed in the presence of at least two witnesses, after the allowance of the claim, the ascertainment of the amount due, and the issuance of a warrant for the payment thereof,' as required by sect. 3477, Rev. Stat.;

2. Because it is tainted with illegality and immorality, and is against public policy; and,

3. Because it is champertous, as it was a bargain to pay one-tenth of whatever might be collected.

1. As to the first objection, all that need be said is, that there is no claim of any lien upon the fund. All Wright undertakes to do is to pay 'one-tenth of whatever he may realize from the Choctaw Indians,. . . whenever the money comes into his hands.' Tebbitts asserts no claim upon the fund: he only asks that he may be paid by Wright for his services after the money has been collected, and in accordance with the stipulations of the contract or memorandum.

2. Tebbitts has not engaged in any improper or illegal service. Wright had a claim against the Choctaw Indians, which they, by their treaty, had agreed to submit to an adjudication by commissioners to be appointed for that purpose. He employed Tebbitts to appear for him professionally before that commission, and enforce his claim. Tebbitts appeared, and presented an argument in behalf of his client. This is all he did, and all he engaged to do. It was legitimate service rendered in a legitimate employment. To deprive a claimant of the means of obtaining such professional service would be to deprive him, in many instances, of the means of asserting and enforcing his claim. In this case, so far as any thing appears by the record, Wright neither contracted for nor received any thing else than legitimate and honorable professional assistance. Such an agreement we held to be valid in Trist v. Child, 21 Wall. 450; for we then said, speaking through Mr. Justice Swayne, 'We entertain no doubt. . . an agreement, express or implied, for purely professional services, is valid.' Such services, we say, 'rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable.' In fact, the commission acting on this claim was a quasi court. It was, in no material respect, for all the purposes of the present controversy, different from the 'Court of Commissioners of Alabama Claims,' or the 'Southern Claims Commission,' or the 'Mexican Claims Commission,' or 'Spanish Claims Commission,' which have been called together, in pursuance of treaty stipulations or otherwise, to settle and adjust disputed claims, for the purpose of their ultimate payment and satisfaction. There is nothing illegal, immoral, or against public policy, in a professional engagement to present and prosecute such claims before such tribunals.

3. In Wylie v. Coxe, 15 How. 415, we decided that an agreement to pay a reasonable percentage upon the amount of recovery was not an illegal contract. Here, after the service had been rendered, and after, as was supposed, the claim had been secured, Wright agreed to pay ten per cent of the amount eventually realized as compensation for the labor done. We see no reason to find fault with this; and the jury seem also to have adopted this rule, which the parties established for themselves, as presenting the true criterion for estimating the reasonable value of the services rendered.

The judgment is affirmed.

title: Wright v. Tebbitts/Opinion of the Court


text: Talk:Wright v. Tebbitts/Opinion of the Court

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


text:
Haines v. Carpenter

APPEAL from the Circuit Court of the United States for the District of Louisiana.

Celia A. Groves of Madison Parish, Louisiana, by her will, dated the 27th of January, 1872, among other things bequeathed to the Baptist church in the city of Vicksburg, the plantation on which she lived, except one hundred and fifty acres, which were designated; and expressed a desire that the church should hold it, and not sell it, and that the proceeds should be employed to educate young men for the ministry. She appointed her brother-in-law, Charles Carpenter, her universal legatee and executor, giving him seizure of the estate to carry out the provisions of the will and the purposes of the trust. The will was admitted to probate on the 16th of March, 1872, by the parish judge; and Carpenter assumed the duties of executor, and took possession of the estate.

The bill in this case was filed in September, 1872, by the appellants, as Trustees of the Vicksburg Baptist Church of Vicksburg in Mississippi, a body corporate of that State, alleging that said church was the one intended by the will, and charging various matters of complaint upon which relief is sought. The defendants are, first, the executor, Charles Carpenter; secondly, one Elias S. Dennis, who claims to have been a partner of testatrix; thirdly, Mary Stout, Julia Trezevant, and others, who claim to be the heirs of the testatrix; fourthly, Richard H. Groves and others, who claim to be the heirs of her deceased husband, George W. Groves; fifthly, John A. Klein and others, legatees named in the will.

The bill states that Carpenter is unfit and incompetent to manage and control the estate, and that he lets it run to waste; and asks that he be removed, and a receiver appointed.

It further states that Dennis has instituted a suit against the executor in the Thirteenth District Court of Louisiana, claiming to have been a partner of testatrix, and that a large amount is due him as such, with a view of absorbing the succession by a judgment; and that the executor is colluding and combining with him, and asks that they be enjoined from continuing such combination.

It also states that Mary Stout, Julia Trezevant, and others, claiming to be the testatrix's heirs, have instituted a suit in the Parish Court of Madison Parish, alleging that the bequest to the church is void, and praying that it may be declared void, for various reasons, amongst others, as being uncertain, against the laws of Louisiana, and attempting to establish a perpetuity; and that the complainants answered the petition in said suit, which is still pending.

And further, that Richard H. Groves and others, alleging themselves to be the heirs of George W. Groves, the testatrix's husband, have also commenced a suit in said Thirteenth District Court, claiming that the property bequeathed belonged to him, and that the will is null and void, and praying that it may be declared void.

In view of these various proceedings, the bill claims that the case presents a multiplicity of suits, sufficient to induce a court of equity to interfere for the protection of the complainants. It also alleges that full and adequate relief cannot be had unless the Circuit Court take cognizance of all the questions presented by said suits, and of the whole subject-matter of the succession, and of all suits and litigations affecting it. It also alleges that such local prejudices exist against the church, that it cannot obtain justice in the State courts.

The bill prays that the executor may account for all moneys received by him from the succession, and for a reference to a master to ascertain and settle all claims against the estate, and that a receiver may be appointed to take charge of the estate; that the will may be declared valid; that the complainants may be put into possession of the plantation; that the executor may be removed; and that an injunction may issue to enjoin and restrain the defendants from further prosecuting the said suits, or any other suits or litigation in the premises.

This bill was dismissed by the court below on demurrer; and from that decree this appeal was taken.

Submitted on printed brief by Mr. Joseph Casey for the appellant, who cited Payne v. Hook, 7 Wall. 425.

No counsel appeared for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Haines v. Carpenter


text: Talk:Haines v. Carpenter

title: Talk:Haines v. Carpenter


text:
Haines v. Carpenter/Opinion of the Court

A mere statement of the bill is sufficient to show that it cannot be sustained. Whilst it undoubtedly presents some matters of equitable consideration, they are so mixed up with others of a different character, or which cannot be entertained by the Circuit Court of the United States, and which constitute the main object and purpose of the suit, as to make the bill essentially bad on demurrer. In the first place, the great object of the suit is to enjoin and stop litigation in the State courts, and to bring all the litigated questions before the Circuit Court. This is one of the things which the Federal courts are expressly prohibited from doing. By the act of March 2, 1793, it was declared that a writ of injunction shall not be granted to stay proceedings in a State court. This prohibition is repeated in sect. 720 of the Revised Statutes, and extends to all cases except where otherwise provided by the Bankrupt Law. This objection alone is sufficient ground for sustaining the demurrer to the bill. In the next place, the claim that the court ought to interfere on account of multiplicity of suits is manifestly unfounded. Only three suits are specified for this purpose in the bill, and each of these has a distinct object, founded on a distinct ground, and is instituted by a distinct class of claimants, who had a perfect right to institute the suit they did. The State courts have full and ample jurisdiction of the cases, and no sufficient reason appears for interfering with their proceedings.

The decree of the Circuit Court is affirmed.


text: Talk:Haines v. Carpenter/Opinion of the Court


text:
McMurray v. Brown

APPEAL from the Supreme Court of the District of Columbia.

This was an action to enforce a mechanics' lien under sect. 1 of the act of Congress approved Feb. 2, 1859, 11 Stat. 376, which provides, 'That any person who shall hereafter, by virtue of any contract with the owner of any building, or with the agent of such owner, perform any labor upon, or furnish any materials, engine, or machinery for the construction or repairing of, such building, shall, upon filing the notice prescribed in sect. 2 of this act, have a lien upon such building and the lot of ground upon which the same is situated for such labor done, or materials, engine, or machine furnished, when the amount shall exceed twenty dollars.'

The second section provides, 'That any person wishing to avail himself of this act, whether his claim be due or not, shall file in the office of the clerk of the Circuit Court of the District of Columbia at any time after the commencement of the said building, and within three months after the completion of such building or repairs, a notice of his intention to hold a lien upon the property declared by this act liable to such lien for the amount due or to become due to him, specifically setting forth the amount claimed. Upon his failure to do so, the lien shall be lost.'

Mrs. McMurray, one of the defendants, was indebted to the complainant in the sum of $1,230.62 for materials furnished by him in the construction of two dwelling-houses on lots belonging to her in the city of Washington, under an agreement, that, upon the delivery of said materials, she would, in payment therefor, convey to him, at the rate of forty-five cents per square foot, certain real estate situate in said city. She subsequently refused to comply with the agreement, but promised to pay him the amount of his bill in cash.

No payment having been made, he, on the 13th of February, 1872, the houses then being uncompleted, gave the required notice of his intention to hold the property subject to his lien.

The court below rendered a decree in favor of the complainant; from which an appeal was taken to this court.

Mr. James S. Edwards for the appellants.

It is insisted as matter of law, that the complainant, upon his own showing, is not entitled to relief. 'Where there is a special contract between a mechanic and the owner or builder of a house for the work which the former is to do in constructing the house, he must look to his contract alone for his security, and cannot resort to the remedy which the mechanics' lien law provides.' Haley v. Prosser, 8 W. & S. 133; Grant v. Strong, 18 Wall. 623.

The complainant must have been entitled to file his lien when the contract was made. He can do nothing afterwards to alter his position. Hoatz v. Patterson, 5 W. & S. 537.

He clearly had no right to file his lien when the alleged agreement was made; for, by its terms, Mrs. McMurray was to convey a certain lot in exchange for the material furnished. His action for a breach of the contract is by a different proceeding. He has a remedy at law; no standing here.

Mr. Edwin L. Stanton for the appellee.

It is submitted that the facts show a contract within the statute; but the appellant insists 'that the complainant, upon his own showing, is not entitled to the relief he seeks, for the contract upon which he relies is a special one.' In support of this proposition, he cites the cases of Haley v. Prosser, 8 W. & S. 133; Hoatz v. Patterson, 5 id. 537; Grant v. Strong, 18 Wall. 623.

The two former decisions 'were a surprise to the profession, acted almost as a nullification of the law, and were followed by an act of the legislature extending the lien to all cases of contracts.' Phill. on Mech. Liens, 166, citing Lay v. Millette, 1 Phila. 513; Russell v. Bell, 44 Penn. 47.

Grant v. Strong in no manner supports the proposition, that, when a special contract has been made, the material-men or laborers have no lien.

The complainant, having no other security, was not deprived of his lien by reason of agreeing to accept land instead of money for his materials. There is no distinction in principle between an agreement to pay money or property which can possibly affect the remedy provided. Phill. on Mech. Liens, 182; Campbell & Kennedy v. Scaife et al., 1 Phila. 187; Haviland v. Pratt, id. 364; Hinchman v. Lybrand, 14 S. & R. 32; Reiley v. Ward, 4 Iowa, 21.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: McMurray v. Brown


text: Talk:McMurray v. Brown

title: Talk:McMurray v. Brown


text:
McMurray v. Brown/Opinion of the Court

Mechanics or other persons, who, by virtue of any contract with the owner of any building, or with the agent of such owner, have, since the 2d of February, 1859, performed labor, exceeding the value of twenty dollars, upon such building, or have furnished materials, engine, or machinery exceeding that value, for the construction or repairing of such building, shall, upon filing the notice prescribed in the second section of the Lien Act of that date, have a lien upon such building, and the lot of ground upon which the same is situated, for such labor done, or materials, engine, or machinery furnished. 11 Stat. 376.

Building materials of great value, such as bricks and lumber, were furnished by the complainant to the first-named respondent, by virtue of a verbal agreement, as he alleges, between him and the husband of the respondent, acting as her agent.

Service was made, and the respondent appeared, and by her answer admitted the averments of the first, second, fourth, and seventh paragraphs of the bill of complaint, but denied every other material allegation which it contains.

Proofs were taken; and, the parties having been fully heard, the judge, at special term, entered a decree that the complainant recover of the respondent the sum of twelve hundred and thirty dollars and sixty-two cents, with interest, as therein provided; and that the described real estate,-to wit, lots numbered thirty-six and thirty-seven,-together with the buildings and improvements thereon, be, and hereby are, subjected to the satisfaction of the complainant's demand.

Due appeal was taken by the respondent to the general term, where the decree of the special term was in all things affirmed; and the respondent appealed to this court.

Two other persons were named as respondents in the bill of complaint who never filed any answer, and are not parties to the decree, for the reason that no relief is sought against them, they having been joined as respondents merely for the purpose of discovery in respect to a prior lien held on the premises by the one named as trustee, to secure a debt due to the other.

Seasonable appearance was entered by the respondent, and she filed an answer; but, the answer having been lost, it is stipulated and agreed between the parties, that the answer, as before stated, admitted all the averments of the first, second, fourth, and seventh paragraphs of the bill of complaint, and that it denied every other allegation of the complainant.

Lumber and bricks were furnished by the complainant for two houses; and the evidence shows that the respondent owned both lots on which the houses were being constructed, and that she was represented throughout the transaction by her husband, who acted as her agent in constructing the houses. Nothing further need be remarked respecting the deed of trust of prior date, as it is admitted by stipulation that the deed is cancelled, and that the debt secured by it is discharged.

Due notice of the intention of the complainant to hold a lien upon the property, as required by the act of Congress, is admitted by the answer; nor is it necessary to discuss the question as to the agency of her husband in the transaction, as that also is admitted by the respondent. What the respondent denies is, that either she, or her agent in her behalf, ever made any such contract with the complainant as that set forth in the bill of complaint, or that the complainant ever furnished and delivered to her or her agent the building materials specified in the bill of particulars annexed to the bill of complaint, or that the materials were ever used by her or by her authority in the construction of the said houses.

Lots thirty-six and thirty-seven belonged to the respondent, and the proof is that they adjoin each other. Prior to the alleged agreement with the complainant, the respondent entered into a contract with another party to build a two-story brick house for her on the lot first named, the contractor agreeing to build the house, and furnish, at his own proper cost and expense, all the materials necessary to complete the same in a workmanlike manner; for which the respondent agreed to pay to the contractor the sum of one thousand dollars, and at the same time to convey to him lot thirty-seven, and to pay the balance, amounting to twelve hundred dollars, in notes of fifty dollars each, payable monthly, at eight per cent interest, to be secured by a deed of trust on lot thirty-six, and the house to be built by the contractor, subject to a prior deed of trust on the same lot. By the record, it appears that the contract, though it bears date the 6th of June, 1871, was not actually executed until about the middle of July following, and that the contractor failed to fulfil the stipulations of the written contract.

Perkins, the contractor, was without means or credit, and possessed no capital whatever, except his skill as a builder; and the husband of the respondent, though he controlled the real estate standing in the name of his wife, was without any ready means at his command: consequently the materials for completing the house could not be obtained except by exchanging some of the real estate for the same. Detailed account is given, in the testimony, of the measures adopted by the parties to effect such an exchange of real estate for building materials; but it must suffice to say that all of the negotiations failed.

All of these attempts to procure building materials by exchanging real estate for the same took place before the contract for building the house was signed; and, at the close of those attempts, an interview occurred between the contractor under the written agreement and the complainant, when the latter informed the former that he would furnish lumber and bricks in exchange for lot thirty-seven, computing the value of the lot at forty-five cents per foot. Within two hours after the conversation, the former contractor reported the same to the husband of the respondent, and told him to have the deed of the lot made directly to the complainant, and proposed, at the same time, to divide between them the five cents per foot advance in price which the seller would receive beyond the consideration promised by the former contractor.

Abundant evidence is given to show that the offer of the complainant to take conveyance of the lot, and furnish the building materials as required, was accepted by the husband of the respondent; and that he, the agent, agreed that the lot should be conveyed to the complainant as proposed.

Pursuant to that arrangement, which appears to have been fairly and understandingly made, the complainant continued to deliver the required building materials; and the conduct of the husband of the respondent throughout the whole period the materials were furnished and delivered shows to the entire satisfaction of the court that the materials were furnished and delivered in pursuance of that understanding, and that he knew that the owner and furnisher of the same was parting with his property in the just and full expectation that the whole passed to the benefit of his wife under that arrangement. Evidence to that effect is found in the testimony of several witnesses; and it is not going too far to say that there is nothing in the record worthy of credit to contradict that theory.

Part of the building materials furnished by the complainant before he made his contract with the respondent were used by the first contractor in the erection of a house on lot thirty-seven, which he designed for himself; but the title and ownership of that lot, as well as lot thirty-six, were in the respondent; and on the 1st of November, 1871, she took actual possession of the lot and the unfinished structure thereon which had been commenced by the former contractor, and ever after continued in the possession and control both of the lot and the building.

Nothing further was ever done by the contractor to complete these houses, and the record shows that the same were completed by another contractor employed by the same agent of the respondent. All of the materials for that purpose were furnished by the complainant; and the record also shows that he furnished all the materials used in constructing and completing both houses, except a small part of the bricks, worth perhaps one hundred dollars, which were purchased by the managing agent of the respondent.

Attempt is made by the respondent to controvert the proposition that her agent ever contracted with the complainant to furnish the building materials in question, and to take the conveyance of lot thirty-seven in payment for the same: but the evidence is so full and satisfactory to that effect, that it is not deemed necessary to add any thing to what has already been remarked upon the subject; nor is it of any importance that she had previously agreed to convey the lot to her former contractor, in case he completed the house for her on lot thirty-six, as he had failed to fulfil the contract, and she had dispossessed him of the premises and of the partly-erected house which he had commenced.

Materials for that purpose to a considerable amount had been furnished by the complainant during the progress of the work, while it was under the superintendence of the former contractor: but inasmuch as the title of both lots was all the time in the respondent, and she had lawfully resumed the possession of lot thirty-seven on account of the failure of the contractor to complete the building on the other lot within the prescribed time, it was entirely competent for the respondent to make the new contract with the complainant, which it is proved she did make through her agent; and, having made the same, she is bound by its terms and conditions just the same as if it had been in writing.

Suppose the facts are so: still it is insisted by the respondent, as matter of law, that the complainant is not entitled to the relief he seeks, for the reason that the contract set up by him is a special contract. The theory is, that the materials having been furnished upon the verbal contract set out in the bill of complaint, that he, the complainant, should furnish the materials, and that she, the respondent, should convey lot thirty-seven to him in payment for the same, that that contract creates no lien, as the materials were furnished solely upon the faith of the special agreement; but the record shows that her agent who made the contract persuaded the complainant to wait for the conveyance until all the materials had been furnished, and that he, the agent, then refused to make the conveyance. Instead of doing as he agreed, having received an offer of fifteen cents per foot for the lot more than the complainant was to allow, he, the agent, promised to pay the complainant the money for the materials, but failed to make good his promise in that regard.

Both houses were completed; and the proof is, that the complainant furnished all the lumber and nearly all the bricks for the purpose, and that he has received no payment for the materials. On the other hand, it appears that the respondent has sold one of the houses for six thousand dollars, and that she and her husband were living in the other.

Other defences failing, her proposition now is, that, where there is a special contract between a mechanic and the owner or builder of a house for the work which the former is to do in constructing the house, he must look to his contract alone for his security, and that he cannot resort to the remedy which the lien law provides. Support to that proposition cannot be derived from any thing contained in the act of Congress passed to enforce mechanics' liens, unless the words of the first section of the act are shorn of their usual and ordinary import and signification.

Persons who perform labor upon, or furnish materials, &c., for, the construction or repairing of a building, by virtue of any contract with the owner of the same, or his agent, have a right to the benefit of the lien if he files the notice prescribed by the second section of the act. Certainly the words any contract are sufficiently comprehensive to include special contracts as well as contracts which arise by implication, unless the materialman is secured by a deed of trust or mortgage, or in some other form of security repugnant to the theory that he ever intended 'to hold a lien under the mechanics' lien law.'

Special reference is made by the respondent to two decided cases in Pennsylvania in support of her proposition that the lien law does not extend to special contracts. Hoatz v. Patterson, 5 W. & S. 538; Haley v. Prosser, 8 id. 133. Unexplained, it may be admitted that those cases do afford support to the proposition that the State lien law to which they refer did not extend to the debt of a material-man, arising from the sale and delivery of building materials, if furnished under a special contract; but those decisions were never satisfactory to the legal profession of that State, and it is believed are not regarded as safe precedents even in the jurisdiction where they were made. Instead of that, the legislature of the State, on the 16th of April, 1860, passed a declaratory law, which enacts that the true intent and meaning of the provisions of the prior act extend to and embrace claims for labor done and materials furnished and used in erecting any house or other building which may have been or shall be erected under or in pursuance of any contract or agreement for the erection of the same, and that the provisions of the former 'act shall be so construed.' Since that time, it has been held by the courts of that State to the effect that special contracts, as well as implied, are within the true intent and meaning of the original lien law of the State. Russell v. Bell, 44 Penn. 36-54; Reiley v. Ward, 4 Greene (Iowa), 21.

Cases may arise, undoubtedly, where the rights and responsibilites of the parties are so completely defined by the contract, that neither party is at liberty to claim any thing beyond the terms of the contract, if the contract is in all respects fulfilled. Consequently, lien laws do not in general create a lien in favor of a material-man who has accepted in full a different security at the time the contract or agreement was made. Examples of the kind, such as a trust-deed or mortgage, may be mentioned, which are regarded as a species of security inconsistent with the idea of a mechanics' lien upon the same land for the same debt. Grant v. Strong, 18 Wall. 623; Phill. on Mech. Liens, sect. 117.

Such a security is regarded as inconsistent with the intent of the parties that a mechanics' lien should be claimed by the party furnishing building materials, as the owner may obligate himself to pay in money, land, or any specific article of property; but, if he does not fulfil his contract by paying in the manner stipulated, the mechanic is entitled to his lien. Reiley v. Ward, 4 Greene, 22.

If the labor has been performed or the materials furnished, no matter in what the owner agreed to pay, if he has not paid in any way, the laborer or mechanic has a right to resort to the security provided by law, unless the rights of third persons intervene before he gives the required notice.

Contracts of a special character, such as to give a mortgage to the laborer or mechanic, if duly executed under circumstances showing that the claim to a lien was not intended by the parties, may defeat such a claim; but a mere promise to give such a security, if subsequently broken, will not impair such a right if the requisite notice is given before any right of a third party, as by attachment or conveyance, has become vested in the premises. Laches in that behalf may impair such a right, and it is one which the claimant may waive. Phill. on Mech. Liens, sects. 117, 272.

Liens of the kind, except where the statute otherwise provides, arise by operation of law, independent of the express terms of the contract, in case the stipulated labor is performed or the promised materials are furnished; the principle being, that the parties are supposed to contract on the basis, that, if the stipulated labor is performed or the promised materials are furnished, the laborer or material-man is entitled to the lien which the law affords, provided he gives the required notice within the specified time. 11 Stat. 376; Phill. on Mech. Liens, sect. 118.

Viewed in any light, it is clear that there is no error in the record.

Decree affirmed.

title: McMurray v. Brown/Opinion of the Court


text: Talk:McMurray v. Brown/Opinion of the Court


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Black v. United States (91 U.S. 267)

APPEAL from the Court of Claims.

A contract was entered into between the United States and the claimants for the transportation of military stores and supplies on Route No. 1, west of the Missouri River, the material provisions of which are as follows:--

'ARTICLE 1. That the said Black, Kitchen, & Martin shall receive at any time, in any of the months from April 1, 1868, to March 31, 1869, inclusive, from the officers or agents of the quartermaster's department at Fort D. A. Russell, in the Territory of Dakota, or such point as may be determined upon during the year on the Omaha branch of the Union Pacific Railroad, west of Fort D. A. Russell, or at Fort Laramie, Dakota Territory, all such military stores and supplies as may be offered or turned over to them for transportation, in good order and condition, by the officer or agent of the quartermaster's department, at any or all of the above points or places, and transport the same with despatch, and deliver them in like good order and condition to the officer or agent of the quartermaster's department on duty or designated to receive them at any of the posts or d ep ots that are now or may be established in the State of Nebraska, west of longitude 102 degrees; in the Territory of Montana, south of latitude 47 degrees; in the Territory of Dakota, west of longitude 104 degrees; in the Territory of Idaho, east of longitude 114 degrees; and in the Territories of Utah and Colorado, north of latitude 40 degrees, including, if necessary, Denver City, or at any other points or posts on the route, agreeably to the instructions they may receive from the officer or other authorized agent of the quartermaster's department charged with the duty of forwarding the stores and supplies at Fort D. A. Russell or other place of departure; and for the faithful performance of such service they shall be paid in the manner hereinafter provided for in Art. XVII. of this agreement, and at the rates specified and shown in the tabular statement hereto annexed and signed by the parties to this agreement, which statement is considered as part hereof.

'ART. II. That the said Black, Kitchen, & Martin agree and bind themselves, their heirs, executors, and administrators, to transport under this agreement, from the posts, d ep ots, or stations named in Art. I., or from and to any other posts, d ep ots, or stations that may be established within the district described in said article, any number of pounds of military stores and supplies from and between one hundred thousand pounds and twenty-five millions of pounds in the aggregate.

'ART. XIV. It is understood that if at any time stores or supplies are required to be transported back to any point on the road, or to any of the original points of departure, or from one point to another within the route, they shall be carried upon the same terms and conditions as herein provided.

'ART. XVII. For and in consideration of faithful performance of the stipulations of this agreement, the said Black, Kitchen, & Martin shall be paid at the office of the quartermaster's department at Omaha, Nebraska, in the legal currency of the United States, according to the distance supplies are transported, and agreeably to the rates specified in the tabular statement hereto annexed, signed by the parties to this agreement.'

In order to execute a requirement of the quartermaster's department for the removal of stores from Fort Phil. Kearney, the claimants, having no teams at that post, were obliged to send them there from Fort D. A. Russell and Fort Fetterman. To recover $55,530 as compensation for the distance thus travelled, this action was brought.

The petition was dismissed by the court below.

Mr. C. F. Peck for the appellants, and Mr. Assistant Attorney-General Edwin B. Smith for the United States.

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

title: Black v. United States (91 U.S. 267)


text: Talk:Black v. United States (91 U.S. 267)


text:
Black v. United States (91 U.S. 267)/Opinion of the Court

The transportation for which compensation is now asked was 'from one point to another within the route;' and full payment has been made therefor 'according to the distance the supplies were transported, and agreeably to the rates specified in the tabular statement.'

It is claimed, however, that as Fort Phil. Kearney, the point at which the supplies were received for transportation, 'was within the route,' the contractors are entitled to compensation for the distance their teams travelled unloaded to reach that place, as well as for the distance the supplies were carried. This claim is based, not upon any express provision in the contract requiring or even permitting such payment, but because, as is insisted, the service rendered was not included in the obligations of the contract. The argument is, that the places named in Art. I. are the only places at which the contractors were bound to receive the supplies to be transported. But this excludes from consideration Arts. II. and XIV., by which the contractors bound themselves not only to transport under the agreement from the posts, d ep ots, and stations named in Art. I., but also 'from and to any other posts, d ep ots, or stations that might be established within the district described in said article,' and 'from one point to another within the route.' For the purposes of construction, we must look to the whole instrument. The intention of the parties is to be ascertained by an examination of all they have said in their agreement, and not of a part only.

In Caldwell's Case, 19 Wall. 264, we decided that the terms 'posts, d ep ots, or stations,' as used in Arts. I. and II. of his contract, 'in the presence of actual war, and in reference to military stores,' included military posts and stations alone. Consequently, it was held that Caldwell could not claim the right of transporting supplies from railroad stations within the district which were not at the same time military posts, stations, or d ep ots. In the present case, the starting-point was Fort Phil. Kearney, a military 'post,' and, consequently, a 'point' within the district at which the contractor could, under the ruling in Caldwell's Case, be required to receive stores and supplies for transportation. It is a noticeable fact, though perhaps under the circumstances of this case unimportant, that the provision for transportation 'from one point to another within the route' in Art. XIV. of this contract, which was for 1868-69, is not in Caldwell's contract. The latter was for the year 1866. It is not impossible that the claim made by him may have suggested the necessity for this change in the terms of such agreements. In his contract, too, Art. I. provided that stores should be received for transportation 'at any points or places at which posts or d ep ots shall be established.' Here the same article provided that they should be received 'at such point as may be determined upon during the year, on the Omaha branch, &c.,' omitting the further provision that it should be a 'post' or 'depot.'

We are clearly of the opinion that the services rendered by these appellants were within the requirements of their contract, and that the only compensation they are entitled to is for the distance the articles were actually carried, and agreeably to the rates specified.

The Judgment is affirmed.


text: Talk:Black v. United States (91 U.S. 267)/Opinion of the Court


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Moore v. United States (91 U.S. 270)

APPEAL from the Court of Claims.

This was a suit to recover the sum of $5,780 on account of cotton seized by the United States.

The court below found that the petitioner, a British subject, owned and was possessed of 26 2/3 bales of cotton stored in a warehouse in St. Joseph's, in the State of Louisiana.

That on the twelfth day of December, 1863, it was seized by the United States, by the boats of their marine brigade under the command of Colonel Ellet, and taken from the possession of the petitioner and sold by the United States, and the net proceeds thereof, amounting to the sum of $5,780, paid into the treasury.

That after said seizure, and while the said cotton was in a boat of the marine brigade, the said petitioner sold the said cotton, as appears by his certificate or paper-writing.

That the original of said certificate or paper-writing was proved in court by a comparison, made by the judges of the court, of the handwriting and signature of said paper-writing with the handwriting and signature of the petitioner in another paper-writing in evidence for other purposes in the cause.

The certificate referred to is as follows:--

'I certify that the cotton taken by the gunboat 'Switzerland,' twenty-six bales, on the 12th December, was my property, and I sold the same and received payment in full, and that the same is registered at the British consul's office, New Orleans; and, as an act of justice, it should be returned.

'JOSEPH MOORE.

'ST. JOSEPH'S, LA., 17th December, 1863.'

Judgment was rendered in favor of the defendant, and the petition dismissed.

Mr. Joseph Casey for the appellant.

1. The court erred in admitting proof of the execution of the paper in question by comparison of handwriting. This court has ruled that such proof is inadmissible where the witness had no prior knowledge of the handwriting. Strother v. Lucas, 6 Pet. 763; Rogers v. Ritter, 12 Wall. 321.

In Pennsylvania, comparison is only admitted in corroboration of other testimony. McCorkle v. Binns, 3 Binn. 349; Bank v. Whitehill, 10 S. & R. 110; Bank v. Haldeman, 1 Penn. 161; Baker v. Haines, 6 Whart. 266; Depue v. Place, 7 Barr, 428.

The same rule prevails in New York. People v. Spooner, 1 Denio, 343; Titford v. Knott, 2 Johns. 211; Jackson v. Phillips, 9 Cow. 94; Wilson v. Kirtland, 5 Hill, 182.

In Maryland, the doctrine that it is not competent to prove by comparison is too firmly established to be disturbed. Smith v. Walton, 8 Gill, 77; same in Kentucky, 7 B. Mon. 269; same in Alabama, 2 Ala. 703; same in Rhode Island, 2 R. I. 319; 1 Greenl. Ev., sect. 576 et seq.

2. If the evidence of comparison be admissible at all, it must be by experts; and it does not appear in any way that these judges, or any of them, are such experts.

3. The party against whom such evidence is admitted is precluded from testing or gainsaying in any way the accuracy or extent of the knowledge by which the instrument is decided to be his.

This is a fatal error, we think, for which this judgment should be reversed.

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

The execution of the paper was properly proved.

Comparison of hands has always been considered a legitimate mode of determining the authenticity of a signature. 6 Court of Claims, 429, 432; Henderson v. Hackney, 16 Ga. 521; McCorkle v. Binns, 5 Binn. 340; Lyon v. Lyman, 9 Conn. 55; Adams v. Field, 21 Vt. 256; Homer v. Wallis, 11 Mass. 309; Moody v. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 id. 315; Griffith v. Williams, 1 Cromp. & Jerv. 47; Solita v. Yarrow, 1 Moody & Rob. 133.

In Chandler v. Le Barron, 45 Me. 534, the plaintiff was allowed to put in a signature that he had required his opponent's witness to write in the presence of the jury, in order that a comparison of it with the signature in controversy might be instituted by the jury, without the intervention of experts.

In very many cases (e. g. Hicks v. Person, 19 Ohio, 426) perhaps in nearly all where the point has been made-experts have been allowed to compare signatures, and give their opinion thereon to the jury.

The papers upon which these opinions were formed then go to the jury, and from them they determine whether the expert came to a correct or to an erroneous conclusion. Is it not absurd to say that the jury cannot examine the papers as independent testimony, yet can decide, upon an inspection of them, that testimony which has been given for their guide in this matter was unreliable, and the witness mistaken?

Every day, capital causes are determined by comparisons; and where, as in many States, views are ordered, comparisons are made by the jury. They see that the shoe fits an impression, or are told that it did; that a hat fits a certain head; that a child, in features and appearance, resembles or does not resemble the putative father (Finnegan v. Dugan, 14 Allen, 197); though testimony to such likeness (Eddy v. Gray, 4 id. 435) or unlikeness (Young v. Makepeace, 103 Mass. 50) is not admitted. All this is simply recognizing the existence of a natural law of similitude in the matters inquired of, and allowing the jury to determine whether or not such similarity is found in the cause upon trial.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Moore v. United States (91 U.S. 270)


text: Talk:Moore v. United States (91 U.S. 270)


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Moore v. United States (91 U.S. 270)/Opinion of the Court

According to the facts found in this case, we think no error was committed by the court below. The only question of importance is, whether the signature to the document bearing date Dec. 17, 1863, and purporting to be executed by the claimant, was properly proved. The court compared it with his signature to another paper in evidence for other purposes in the cause, respecting which there seems to have been no question; and from that comparison adjudged and found that the signature was his. Had the court a right to do this? The Court of Claims, like a court of equity or admiralty, or an ecclesiastical court, determines the facts as well as the law; and the question is, whether they may determine the genuineness of a signature by comparing it with other handwriting of the party. By the general rule of the common law, this cannot be done either by the court or a jury; and that is the general rule of this country, although the courts of a few States have allowed it, and the legislatures of others, as well as of England, have authorized it. In the ecclesiastical courts, which derived their forms of proceeding from the civil law, a different rule prevails. The question is, By what law is the Court of Claims to be governed in this respect? May it adopt its own rules of evidence? or is it to be governed by some system of law? In our opinion, it must be governed by law; and we know of no system of law by which it should be governed other than the common law. That is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law. The great majority of contracts and transactions which come before the Court of Claims for adjudication are permeated and are to be adjudged by the principles of the common law. Cases involving the principles of the civil law are the exceptions. We think that where Congress has not provided, and no special reason demands, a different rule, the rules of evidence as found in the common law ought to govern the action of the Court of Claims. If a more liberal rule is desirable, it is for Congress to declare it by a proper enactment.

But the general rule of the common law, disallowing a comparison of handwriting as proof of signature, has exceptions equally as well settled as the rule itself. One of these exceptions is, that if a paper admitted to be in the handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the cause, the signature or paper in question may be compared with it by the jury. It is not distinctly stated in this case that the writing used as a basis of comparison was admitted to be in the claimant's hand; but it was conceded by counsel that it was, in fact, the power of attorney given by him to his attorney in fact, by virtue of which he appeared and presented the claim to the court. This certainly amounted to a declaration, on his part, that it was in his hand; and to pretend the contrary would operate as a fraud on the court. We think it brings the case within the rule, and that the Court of Claims had the right to make the comparison it did.

The decree is affirmed.

MR. JUSTICE DAVIS did not sit in this case, and took no part in its decision.


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Welton v. Missouri

ERROR to the Supreme Court of Missouri.

Welton was indicted, tried, and convicted in the Circuit Court for the County of Henry, in the State of Missouri, for selling goods without a license.

The first section of the statute under which the indictment was found is as follows:--

'Whoever shall deal in the selling of patent or other medicines, goods, wares, or merchandise, except books, charts, maps, and stationery, which are not the growth, produce, or manufacture of this State, by going from place to place to sell the same, is declared to be a peddler.'

The other sections prohibit a person dealing as a peddler without license, and impose a penalty therefor, and prescribe the rate of charge for such license. No license is required for selling 'by going from place to place,' the growth, produce, or manufacture of the State.

The Supreme Court, on appeal, affirmed the decision of the Circuit Court, on the ground that the statute applied solely to the internal commerce of the State, and made no discrimination against citizens of other States, but merely imposed a tax upon a calling or a profession, and neither directly nor indirectly upon property.

For errors in this judgment the case is brought here.

Mr. James S. Botsford and Mr. S. M. Smith for the plaintiff in error.

The Supreme Court of Missouri erred in affirming the judgment of the Circuit Court of Henry County, and adjudging the statute of the State relating to peddlers and their licenses to be valid, and not in conflict with the Constitution of the United States.

The statute of a State, which declares that a person who deals in goods, wares, and merchandise not the growth, produce, or manufacture of such State, by going from place to place to sell them, is a peddler, and, as such, imposes a license tax upon him, while it imposes no such tax where the sale is made in the same manner of like articles grown, produced, or manufactured in such State, discriminates in favor of the latter against other States, is a regulation of commerce, and is contrary to the provisions of the Constitution of the United States. Crow v. Missouri, 14 Mo. 290; State v. North & Scott, 27 id. 464; 2 Story on the Constitution (4th ed.), sects. 1056-1076; Corfield v. Coryell, 4 Wash. C. C. 371; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Almy v. California, 24 How. 169; Crandall v. Nevada, 6 Wall. 35; Woodruff v. Parham, 8 id. 123; Hinson v. Lott, id. 148; Ward v. Maryland, 12 id. 418; Railroad Co. v. Pennsylvania, 15 id. 232; Railroad Co. v. Richmond, 19 id. 589.

The statute attempts to derive a revenue from imports, and, to be valid, must have the sanction of Congress.

The courts below, in holding that it merely imposed a tax on the calling or profession of the vendor, and not upon the thing sold, ignore the doctrine of Brown v. Maryland, 12 Wheat. 444, that 'a tax on the occupation of an importer is in like manner a tax on importation.'

Mr. John A. Hockaday, Attorney-General of Missouri, and Mr A. H. Buckner, contra.

The statute in question does not provide a system of taxation which discriminates prejudicially against articles manufactured beyond the limits of the State, and it cannot to any extent have that effect. Osborne v. Mobile, 16 Wall. 479.

It merely defines the calling or occupation of peddler, requires a license therefor at certain specified rates, and renders him liable to a criminal prosecution if he pursues such calling or occupation without a license. The right of a State to tax its own citizens for the prosecution of any particular business or profession within the State has not been doubted. Nathan v. Louisiana, 8 How. 73; Cummings v. Savannah, R. M. Charlt. 26; Roquet v. Wade, 4 Ohio, 114; Beal v. State, 4 Blackf. 108; Austin v. State, 10 Mo. 593; Simmons v. State, 12 id. 268; 5 How. 504, 588; 7 id. 283; 55 Mo. 288; 8 Wall. 123.

Although the doctrine is clearly settled in this country, that the States may even regulate commerce, so long as Congress does not intervene by legislation (7 Pet. 221; 11 id. 102), the question does not arise in this case. The act does not impose a tax upon property, nor does it prevent, or seek to prevent, the importation of any kind of goods whatever; and neither imposes conditions upon, nor places impediments in the way of, a free interchange of commodities with other states or countries.

The cost of the license is not controlled by the value of the goods to be sold, but by the mode in which the business is done. The foot peddler pays less for his license than a wagon or steamboat peddler, although his sales may largely exceed theirs.

As it is entirely within the province of the State to license and tax such avocations as its legislature may deem proper, and as the statute in question does not interfere with inter-State commercial relations, it is constitutional and valid.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Welton v. Missouri


text: Talk:Welton v. Missouri

title: Talk:Welton v. Missouri


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Welton v. Missouri/Opinion of the Court

This case comes before us on a writ of error to the Supreme Court of Missouri, and involves a consideration of the validity of a statute of that State, discriminating in favor of goods, wares, and merchandise which are the growth, product, or manufacture of the State, and against those which are the growth, product, or manufacture of other states or countries, in the conditions upon which their sale can be made by travelling dealers. The plaintiff in error was a dealer in sewing-machines which were manufactured without the State of Missouri, and went from place to place in the State selling them without a license for that purpose. For this offence he was indicted and convicted in one of the circuit courts of the State, and was sentenced to pay a fine of fifty dollars, and to be committed until the same was paid. On appeal to the Supreme Court of the State, the judgment was affirmed.

The statute under which the conviction was had declares that whoever deals in the sale of goods, wares, or merchandise, except books, charts, maps, and stationery, which are not the growth, produce, or manufacture of the State, by going from place to place to sell the same, shall be deemed a peddler; and then enacts that no person shall deal as a peddler without a license, and prescribes the rates of charge for the licenses, these varying according to the manner in which the business is conducted, whether by the party carrying the goods himself on foot, or by the use of beasts of burden, or by carts or other land carriage, or by boats or other river vessels. Penalties are imposed for dealing without the license prescribed. No license is required for selling in a similar way, by going from place to place in the State, goods which are the growth, product, or manufacture of the State.

The license charge exacted is sought to be maintained as a tax upon a calling. It was held to be such a tax by the Supreme Court of the State; a calling, says the court, which is limited to the sale of merchandise not the growth or product of the State.

The general power of the State to impose taxes in the way of licenses upon all pursuits and occupations within its limits is admitted, but, like all other powers, must be exercised in subordination to the requirements of the Federal Constitution. Where the business or occupation consists in the sale of goods, the license tax required for its pursuit is in effect a tax upon the goods themselves. If such a tax be within the power of the State to levy, it matters not whether it be raised directly from the goods, or indirectly from them through the license to the sealer; but, if such tax conflict with any power vested in Congress by the Constitution of the United States, it will not be any the less invalid because enforced through the form of a personal license.

In the case of Brown v. Maryland, 12 Wheat. 425, 444, the question arose, whether an act of the legislature of Maryland, requiring importers of foreign goods to pay the State a license tax before selling them in the form and condition in which they were imported, was valid and constitutional. It was contended that the tax was not imposed on the importation of foreign goods, but upon the trade and occupation of selling such goods by wholesale after they were imported. It was a tax, said the counsel, upon the profession or trade of the party when that trade was carried on within the State, and was laid upon the same principle with the usual taxes upon retailers or inn-keepers, or hawkers and peddlers, or upon any other trade exercised within the State. But the court in its decision replied, that it was impossible to conceal the fact that this mode of taxation was only varying the form without varying the substance; that a tax on the occupation of an importer was a tax on importation, and must add to the price of the article, and be paid by the consumer or by the importer himself in like manner as a direct duty on the article itself. Treating the exaction of the license tax from the importer as a tax on the goods imported, the court held that the act of Maryland was in conflict with the Constitution; with the clause prohibiting a State, without the consent of Congress, from laying any impost or duty on imports or exports; and with the clause investing Congress with the power to regulate commerce with foreign nations.

So, in like manner, the license tax exacted by the State of Missouri from dealers in goods which are not the product or manufacture of the State, before they can be sold from place to place within the State, must be regarded as a tax upon such goods themselves; and the question presented is, whether legislation thus discriminating against the products of other States in the conditions of their sale by a certain class of dealers is valid under the Constitution of the United States. It was contended in the State courts, and it is urged here, that this legislation violates that clause of the Constitution which declares that Congress shall have the power to regulate commerce with foreign nations and among the several States. The power to regulate conferred by that clause upon Congress is one without limitation; and to regulate commerce is to prescribe rules by which it shall be governed,-that is, the conditions upon which it shall be conducted; to determine how far it shall be free and untrammelled, how far it shall be burdened by duties and imposts, and how far it shall be prohibited.

Commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities between the citizens of our country and the citizens or subjects of other countries, and between the citizens of different States. The power to regulate it embraces all the instruments by which such commerce may be conducted. So far as some of these instruments are concerned, and some subjects which are local in their operation, it has been held that the States may provide regulations until Congress acts with reference to them; but where the subject to which the power applies is national in its character, or of such a nature as to admit of uniformity of regulation, the power is exclusive of all State authority.

It will not be denied that that portion of commerce with foreign countries and between the States which consists in the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation. The very object of investing this power in the General Government was to insure this uniformity against discriminating State legislation. The depressed condition of commerce and the obstacles to its growth previous to the adoption of the Constitution, from the want of some single controlling authority, has been frequently referred to by this court in commenting upon the power in question. 'It was regulated,' says Chief Justice Marshall, in delivering the opinion in Brown v. Maryland, 'by foreign nations, with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the Federal Government to enforce them became so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It may be doubted whether any of the evils proceeding from the feebleness of the Federal Government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress.' 12 Wheat. 446.

The power which insures uniformity of commercial regulation must cover the property which is transported as an article of commerce from hostile or interfering legislation, until it has mingled with and become a part of the general property of the country, and subjected like it to similar protection, and to no greater burdens. If, at any time before it has thus become incorporated into the mass of property of the state or nation, it can be subjected to any restrictions by State legislation, the object of investing the control in Congress may be entirely defeated. If Missouri can require a license tax for the sale by travelling dealers of goods which are the growth, product, or manufacture of other states or countries, it may require such license tax as a condition of their sale from ordinary merchants, and the amount of the tax will be a matter resting exclusively in its discretion.

The power of the State to exact a license tax of any amount being admitted, no authority would remain in the United States or in this court to control its action, however unreasonable or oppressive. Imposts operating as an absolute exclusion of the goods would be possible, and all the evils of discriminating State legislation, favorable to the interests of one State and injurious to the interests of other states and countries, which existed previous to the adoption of the Constitution, might follow, and the experience of the last fifteen years shows would follow, from the action of some of the States.

There is a difficulty, it is true, in all cases of this character, in drawing the line precisely where the commercial power of Congress ends and the power of the State begins. A similar difficulty was felt by this court, in Brown v. Maryland, in drawing the line of distinction between the restriction upon the power of the States to lay a duty on imports, and their acknowledged power to tax persons and property; but the court observed, that the two, though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them; but that, as the distinction exists, it must be marked as the cases arise. And the court, after observing that it might be premature to state any rule as being universal in its application, held, that, when the importer had so acted upon the thing imported that it had become incorporated and mixed up with the mass of property in the country, it had lost its distinctive character as an import, and become subject to the taxing power of the State; but that, while remaining the property of the importer in his warehouse in the original form and package in which it was imported, the tax upon it was plainly a duty on imports prohibited by the Constitution.

Following the guarded language of the court in that case, we observe here, as was observed there, that it would be premature to state any rule which would be universal in its application to determine when the commercial power of the Federal Government over a commodity has ceased, and the power of the State has commenced. It is sufficient to hold now that the commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character. That power protects it, even after it has entered the State, from any burdens imposed by reason of its foreign origin. The act of Missouri encroaches upon this power in this respect, and is therefore, in our judgment, unconstitutional and void.

The fact that Congress has not seen fit to prescribe any specific rules to govern inter-State commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that inter-State commerce shall be free and untrammelled. As the main object of that commerce is the sale and exchange of commodities, the policy thus established would be defeated by discriminating legislation like that of Missouri.

The views here expressed are not only supported by the case of Brown v. Maryland, already cited, but also by the case of Woodruff v. Parham, 8 Wall. 123, and the case of the State Freight Tax, 15 Wall. 232. In the case of Woodruff v. Parham, Mr. Justice Miller, speaking for the court, after observing, with respect to the law of Alabama then under consideration, that there was no attempt to discriminate injuriously against the products of other States or the rights of their citizens, and the case was not, therefore, an attempt to fetter commerce among the States, or to deprive the citizens of other States of any privilege or immunity, said, 'But a law having such operation would, in our opinion, be an infringement of the provisions of the Constitution which relate to those subjects, and therefore void.'

The judgment of the Supreme Court of the State of Missouri must be reversed, and the cause remanded, with directions to enter a judgment reversing the judgment of the Circuit Court, and directing that court to discharge the defendant from imprisonment, and suffer him to depart without day.

title: Welton v. Missouri/Opinion of the Court


text: Talk:Welton v. Missouri/Opinion of the Court


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Western Union Telegraph Company v. Western and Atlantic Railroad Company

APPEAL from the Circuit Court of the United States for the Northern District of Georgia.

The State of Georgia, sole owner of the Western and Atlantic Railroad, desiring the use of a telegraph for the purposes of the road along its line, an instrument of writing providing therefor, bearing date Aug. 18, 1870, signed by William Orton, president, on behalf of the Western Union Telegraph Company, and by Foster Blodgett, superintendent of the railroad, was approved by Rufus B. Bullock, governor, and countersigned by H. C. Carsen, secretary of the executive department.

The substance of this agreement was, that the company should put up and set apart on its poles already there, along said railroad, a telegraph line for the exclusive use of the railroad; equip it with as many instruments, batteries, and other necessary fixtures, as might be required for use in the railroad stations; run the wire into all the offices along the line of the road, and put the same in complete working order. Other provisions related to the terms on which the officers of the road might transmit and receive messages through the connecting lines of the company; to the right of way of the company along the line of the road; and to other matters regulating the use of the wire, and compensation for it. The sixth article bound the State to pay, as soon as it could be ascertained, the cost of constructing the wire, and of equipping it at railroad stations not already supplied with instruments, batteries, and other necessary fixtures. Shortly after the wires were set up, and the instruments put in working order, the governor of the State, under authority of an act of the legislature, granted, conveyed, and leased 'the Western and Atlantic Railroad, which is the property of the State of Georgia, together with all its houses, workshops, d ep ots, rolling-stock, and appurtenances of every character, for the full term of twenty years,' to certain persons who became a body corporate by the name of 'The Western and Atlantic Railroad Company.'

The railroad company took possession of the road and its appurtenances under the lease, including the wire and batteries and instruments put on the road and in its offices by the telegraph company under the contract with the State; but, having this possession, refused to pay for the transmission of messages over connecting lines according to the terms of the contract, and claimed that it was not bound thereby, and that, in fact, the true construction of that agreement being that the State had bought and paid for the wire and instruments, and owned them, it, as lessee of the State, had the right to control and use them without any liability to the telegraph company.

The telegraph company, in its bill of complaint, states the refusal of the railroad company to recognize its rights in any respect, while insisting on using the wire and apparatus, and withholding from the complainant any use of them in the offices and d ep ots of the road; alleges that these considerations induced the complainant to treat as revoked and withdrawn all power and privilege on the part of the defendant to use said wire and apparatus, or to receive compensation therefor; and that the complainant, seeking to recover possession of them, had been hindered and obstructed by the defendant in so doing. The bill prays that the defendant be enjoined from using said wire, from hindering or obstructing the complainant in the use of it, or in severing it from all the offices of the defendant, and for such other and further relief as the nature of the case requires.

The railroad company, in its answer, denies that the contract between the telegraph company and the State is valid, being without authority of law; asserts that, if valid, it, as lessee of the railroad, is not bound by the terms thereof; and that, by the true construction of that contract, the State became the purchaser and owner of the wire and instruments, and that the company succeeded to this ownership without being bound by the other terms of the agreement.

The railroad company also filed a cross-bill, setting up this view of its rights, and praying an injunction against the telegraph company to restrain it from interfering with the use of the wire and apparatus so acquired from the State.

The District Court dismissed this cross-bill on demurrer, and on hearing the original bill of the complainant, the answer and evidence, decreed that the wire and instruments in question are the property of the State of Georgia, and are included in the lease to the railroad company; and that this company is not bound by the terms of the contract in other respects, unless adopted by it; and, therefore, dismissed the bill.

Mr. J. Hubley Ashton for the appellant.

The agreement between the State and the Western Union Telegraph Company neither constituted nor contemplated a sale of the wire, but merely the right of the State to use it and its equipments for the purposes mentioned in such agreement, subject to all the terms, conditions, and obligations therein expressed. The scheme and objects of the contract, as clearly set forth in the recital, were 'to provide necessary telegraph facilities' for the State, as proprietor and manager of the railroad; to settle the terms upon which the telegraph company should occupy the railroad 'with the line or lines of telegraph wires belonging to' that company; and to define the business relations between it and the State.

No particular covenant of the State was intended to be the special consideration for any one covenant on the part of the company; but the consideration on each side was an entirety.

As part of this entirety of consideration for all that was stipulated to be done by the telegraph company for the benefit of the State, the latter agreed to pay, as soon as it could be ascertained, the cost of constructing and equipping the wire; not the value of the property as upon a sale to a purchaser, but its bare cost to the company.

Consequently, it was not a contract of 'bargain and sale,' by which the title to the wire and its equipments was transferred to the State.

It is indisputable that the instrument contains no expressed agreement on the part of the telegraph company to sell, or on the part of the State to purchase, any telegraph wire at any price: on the contrary, the company agreed to 'set apart' on its line of poles a telegraph wire for the exclusive use of the State in the transmission of legitimate railroad messages-that is, messages on the business of such railroad-on and along the line of the road.

It is clear that the title to the property in question did not pass to the State under the contract; and she, therefore, had no power to lease it to the railroad company.

The transaction betwen the railroad company and the State, according to the version of it given in the answer of the former, purports to have been a assignment and lease of the general and absolute property in the wire and equipments for the term of twenty-one years, and not an assignment or lease of the contract or the State's restricted right of user; and, if this was the transaction, there can be no doubt, upon well-settled principles of law, that it was absolutely tortious, and that the use of the property by the railroad company has been from the beginning a continuing trespass as against the Western Union Telegraph Company.

The act of the legislature of Georgia authorized the governor of the State to lease the Western and Atlantic Railroad, together 'with all its houses, workshops, d ep ots, rolling-stock, and appurtenances of every character,' for the term of twenty-one years. Georgia Acts 1870, p. 55.

The lease executed in compliance with that act does not in terms purport to pass or transfer the contract of the State with the Western Union Telegraph Company. The claim of the railroad company is, that the intention was to pass the title of the property in reference to which the contract was made, as a piece of property owned by the State, and appurtenant to the road.

If it be conceded that the right or interest in the State, under the contract of 1870, amounted to a special property in the wire and equipments (as it did not, for there can be no special property without possession, which the railroad had not) which might have been assigned or leased by the State, nevertheless the State had no right to sell or lease the property of the telegraph company; and, if it had a special property in the wire, it thereby determined the contract with that company, and parted with its limited interest, and its lessee rendered itself liable to be dealt with as a trespasser by receiving and using the property under such a transaction. 1 Chit. on Cont. 534; Story on Bail., sect. 322; McCombie v. Davis, 6 East, 540; Loeschman v. Machin, 2 Stark. N. P. C. 311; Cooper v. Willomatt, 1 Com. Bench, 683; Bryant v. Wardell, 2 Exch. 482; Fenn v. Bittleston, 7 id. 157; Farrant v. Thompson, 5 B. & Ald. 529; Emerson v. Fisk, 6 Greenl. 206; Croker v. Gullifer, 44 Me. 491; Hyde v. Noble, 13 N. H. 499; Stanley v. Gaylord, 1 Cush. 542-551; Galvin v. Bacon, 2 Fairf. 30; Austin v. Dey, 46 N. Y. 502; Ballard v. Burgett, 40 id. 314; Sanborn v. Colman, 6 N. H. 15; Story on Bail., sect. 396.

But, if the lease of the railroad and its appurtenances is to be deemed a demise or assignment of the contract between the State and the telegraph company and the right of user exercisible by the former under that contract, it is equally clear, upon the averments in the answer, that the railroad company is not in the lawful control or use of the property, as it has announced its determination not to be bound by such contract. Penn. R.R. Co. v. Sly, 65 Penn. 209; McMillan v. M. S. & N. J. R.R. Co., 16 Mich. 102; Tomlinson v. Branch, 15 Wall. 464; L. & S. W. R.R. Co. v. S. E. Railway Co., 8 Exch. 604; Fouldes v. Willoughby, 8 Mees. & Wels. 549; Story on Bail., sect. 89; Clark v. Gilbert, 2 Bing. N. C. 343.

Mr. Benjamin H. Hill for the appellee.

The property in dispute is not owned by the Western Union Telegraph Company, but by the State of Georgia. It was purchased by the State, and paid for after the lease to the appellee. It stood upon the poles on the land of the State. She therefore had the exclusive dominion over and the use of it.

When the exclusive use of a thing is granted, the thing itself is by such terms conveyed.

'If the grant be of the uses of and dominion over land, it carries the land itself.' 3 Wash. Real Prop. (ed. 1868), p. 333, *622; Coke, Litt. lib. 1, cap. 1, of Fee-Simple; Caldwell v. Fulton, 31 Penn. 484.

The State was then operation the road, and the wire was set apart for her exclusive use; and there can be no escape from the conclusion that it was the property of the State. If this is not the proper construction, then there was no mutuality in the contract, and it was void.

If the contract has all the force it ever had against the State, then it is insisted that the telegraph company cannot sustain this action, because the railroad company is not bound for the contracts or torts of the State of Georgia prior to the date of the lease, unless it becomes so by contract.

Sect. 4 of the Lease Act (Acts of Georgia, 1870, p. 425) expressly provides that the railroad company 'shall be liable for its contracts made after the execution of the lease, and for any cause of action to which it may become liable after said lease is executed.

It is clear, from all the sections of the act of 1870, that the State did not intend that her lessees should assume her obligations; and, in contracting to lease the road, they did not assume them.

It is also clear that the appellee is not in any way bound to the appellant by express contract, because it made none, and refused to be bound by that with the State. If the contract between the telegraph company and the State is a covenant at all, it is a personal covenant, and binding only on the makers thereof. Taylor v. Owen, 2 Blackf. 301.

MR. JUSTICE MILLER, after stating the case as above, delivered the opinion of the court.


text: Talk:Western Union Telegraph Company v. Western and Atlantic Railroad Company


text:
Western Union Telegraph Company v. Western and Atlantic Railroad Company/Opinion of the Court

We differ with the District Court as to the construction of the instrument. We do not think that the State simply bought a wire and batteries and other instruments, and became absolute owners of them: on the contrary, we think that the contract was for the use of a wire and instruments of the telegraph company.

The language of the first covenant of the telegraph company is, that it agrees 'to set apart on its line of poles along said railroad a telegraph wire for the exclusive use of said party of the second part.' The further covenants are all consistent with this. The contract for the use of this wire in connection with the others, and for the use of one of the wires already there when this shall be disabled, the fact that it is placed upon the poles of the company already in use for two other wires, the agreements regulating the offices, and, in short, the whole frame of the contract, show that the wire, the poles, the instruments, were the property of the telegraph company, with exclusive use of this wire transferred to the railroad.

This view is perfectly consistent with the idea that the State should pay the cost and expense of the additional wire and instruments rendered necessary by this agreement for its exclusive use, which does not prove that any thing more than this right to exclusive use passed to the State.

If this be true, the railroad company, taking possession of this wire and instrument under claim of right from the State, must use it on the terms which bound the State, or not use it at all.

The ownership being in the telegraph company, the road could only have such use of it, lawfully, as it acquired from the State; and the right of the State to the use of it is governed by the terms of the agreement.

It is said that the contract between the State and the telegraph company is void, because the superintendent and the governor had no power to make it, and because it is oppressive and extortionate.

We do not decide whether this be so or not. Whenever the railroad company or the State shall cease to use the wire, shall abandon the contract and leave the instruments severely alone, and the complainant shall then seek to compel compliance with the contract, it will be time to decide that question; but so long as this company, by the use of the wire and the apparatus, gets the benefit of the contract, it must also abide by the terms in other respects.

We are embarrassed in this view of the subject by the unskilful character of the bill. The relief it seeks is the very last one would think of; namely, to enjoin the railroad company from the use of a wire and battery and instruments running along their line, and fixtures in their offices and d ep ots, where they may remain until it be the pleasure of the complainant to take them away. The right to compensation for what the complainant has suffered by the failure of defendant, while using the wire, to comply with the covenants of the State, can be understood, and the right of defendant, when performing the covenants of the State, to use the wire, can be understood; the right to a rescission of the contract, if either party prayed therefor, can be understood: but this right which each claims, that it shall be let alone by the other to do as it pleases in regard to this wire, is very difficult to understand.

Complainant, in the petition, treats as revoked the power and privilege of defendant to use the wire and instruments. Is this an abandonment of the contract by complainant?

But there is in the bill a prayer for such other and general relief as the case may require. There is also the following stipulation after the pleadings are all in, which relieves us of much difficulty:--

'It is agreed by counsel, that if the use of the wire by the defendant is affected by the contract entered into between the complainant and the State (which contract is copied in the exhibit to the bill) in such manner as that the terms of said contract must be observed and complied with by defendant in order to retain the right to such use, the case is one proper for reference to the master to take an account, unless the court should adjudge that there is no right in complainant to relief in equity.'

Now, we are of opinion that the use of the wire by defendant is affected by the contract between complainant and the State, in such manner, that such use requires the defendant to comply with the terms of that contract.

We are also of opinion that to prevent multiplicity of suits, and to have an accounting, instead of bringing a suit on every specific violation of the covenants of the State, complainant has a right to relief in equity.

The decree of the Circuit Court is, therefore, reversed, with directions to refer the case to a master to state an account on the terms of the contract between the State and the telegraph company, as between the complainant and defendant, for the time defendant has used the wires, batteries, and equipments put up under that contract, and to render a decree for that amount.

MR. JUSTICE FIELD dissented.


text: Talk:Western Union Telegraph Company v. Western and Atlantic Railroad Company/Opinion of the Court


text:
Forsythe v. Kimball

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. W. C. Goudy for the appellant, and by Mr. John L. Thompson for the appellee.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Forsythe v. Kimball


text: Talk:Forsythe v. Kimball

title: Talk:Forsythe v. Kimball


text:
Forsythe v. Kimball/Opinion of the Court

The case made by the bill is as follows:-- The appellant, John Forsythe, negotiated a loan of $5,000 from the insurance company. He had four brothers. For $4,000 of the amount loaned, he and each of his brothers gave a separate note of $800. Ten notes of $200 each, signed by all the parties, were given for the interest, which was to be paid semi-annually, at the rate of ten per cent per annum. The notes all bore date on the 5th of January, 1869. Those for the principal were to be paid at the end of five years. At the same time, Robert H. Forsythe, one of the brothers, gave for the residue of the loan his note for $1,000, of the same date with the five notes of $800 each. He also then gave his ten notes of $50 each for the interest, which was at the same rate as that upon the notes of $800, and payable at the same times. The notes were all made payable to J. Y. Scammon, or order.

Four thousand dollars of the money loaned was invested in real estate, and the title taken to the five brothers who had executed the five notes of $800. They secured those notes and the ten interest notes by a mortgage on the premises. The $1,000 for which Robert H. Forsythe gave his notes was invested in land which was conveyed to him, and he secured his notes by a mortgage upon it. Scammon was an active officer of the insurance company. When the loan was negotiated and consummated, the appellant, as an inducement to the company to make it, assumed and promised by parol to pay all the notes above mentioned, both for principal and interest. Upon receiving the securities, Scammon indorsed and transferred them to the insurance company. The appellant insists that the $5,000 was lent by the company, and not by Scammon, and that the loan was to him, and in no part to the other parties who executed the notes. The appellant paid all the interest notes, amounting to $1,250, which fell due prior to the 9th of October, 1871. His brothers are irresponsible, and paid nothing. On the day last named the great Chicago fire occurred. He held fire-policies issued by the company upon buildings which were consumed. The company thus became indebted to him to the amount of $11,000. His losses were settled and adjusted at that sum. No part of it has been paid. On the 28th of April, 1873, his four brothers conveyed to him their rights and titles to the several mortgaged premises.

He seeks to have the amount due to him from the insurance company set off against all the notes, so far as shall be necessary to satisfy and extinguish the latter.

The answer of the assignee denies that the money in question was borrowed from the insurance company, and avers that the company bought the notes from Scammon for a valuable consideration.

The court decreed that the appellant was entitled to a set-off as claimed for the amount of his note of $800, and for his proportionate share of the several interest notes which he had executed. From this decree he appealed to this court.

Upon looking into the record, we find that no testimony was taken upon either side but that of the appellant, which was taken for himself.

In his deposition are the following questions and answers:--

'Q. Did you borrow any sum of money from the Mutual Security Insurance Company in the year 1869? If so, state when you borrowed the money, and the amount.

'A. I borrowed the sum of $5,000 from said company on or about the fifth day of January, 1869.

'Q. What officer of the Mutual Security Insurance Company besides Scammon did you have any conversation with in reference to this loan, if any?

'A. Scammon was the only officer of the company.

'Q. Do you know whether the money that was paid for this land originally was the money of the company, or the money of Scammon?

'A. Scammon paid over the money; but whether it was the company's money or Scammon's, that I don't know.

'Q. Why were the notes made payable to Scammon?

'A. Because the officers of the company wanted Scammon to take the responsibility of making the loan. He was managing the notes of the company; and he was willing to indorse the notes, knowing all the parties, and looking to me to be the responsible party.

'Q. Did you make any agreement or promise to pay these notes, or any part of them? and, if so, what agreement or promise did you make about it?

'A. I agreed with Scammon that I would pay the notes, and be responsible for them.

'Q. How much of them?

'A. All of them.' This is all the deposition contains which is material to the points in controversy between the parties.

The burden of proof rests upon the appellant. His own testimony is weak and inconclusive. The case fails upon the evidence.

It must fail also upon a well-settled principle of law.

If it were clearly proved, as alleged, that the entire sum of $5,000 was lent to the appellant, and that he expressly agreed at the time the securities were executed to pay back himself the entire amount at the end of five years, and to pay the interest in the mean time as stipulated, such proof would be wholly inconsistent with the contract of the parties as reduced to writing, and would, therefore, be unavailing either for or against him. 'It is a firmly settled principle, that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, cannot be permitted to vary, qualify, or contradict, or add to or substract from, the absolute terms of the written contract.' 2 Pars. on Bills & Notes, 501; Specht v. Howard, 16 Wall. 564. It is not claimed that there was either fraud, accident, or mistake touching the securities that were executed.

Under these circumstances, the rule is the same in equity as at law. 2 Story's Eq., sect. 1531.

It is neither alleged nor proved that the mortgage given by the appellant and his brothers was not sufficient to secure him against their shares of the notes executed jointly by him and them. Their shares of the premises have been conveyed to him.

The indemnity is, therefore, in his own hands.

All was given below to the appellant to which in any view of his case he can be deemed entitled.

The decree of the Circuit Court is affirmed.


text: Talk:Forsythe v. Kimball/Opinion of the Court


text:
Dow v. Humbert

ERROR to the Circuit Court of the United States for the Western District of Wisconsin.

This was an action of tort brought against the defendants below, who were supervisors of the town of Waldwick, Wis., for neglect of duty in refusing to place upon the tax-list, as required by the statutes of Wisconsin, the amount of two judgments recovered by the plaintiff below against said town. Two questions arose in the case:--

First, Whether one of the judgments was properly described in the declaration.

Secondly, Whether the plaintiff was entitled only to recover nominal damages.

To the ruling of the court below on both these points the plaintiff below excepted.

The particulars of the case appear fully in the opinion of the court.

Mr. M. H. Carpenter and Mr. E. Mariner for the plaintiff.

No counsel appeared for the defendants.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Dow v. Humbert


text: Talk:Dow v. Humbert

title: Talk:Dow v. Humbert