text:
Kellogg Bridge Company v. Hamilton/Opinion of the Court

It is insisted by the defendant in error that the value of the matter really in dispute here is less than the amount requisite to give this court jurisdiction. Upon this ground a motion to dismiss was heretofore made, and was denied. To that ruling we adhere. Upon the pleadings it is apparent that the defendant asserts its right to judgment for $6,619.70 after crediting plaintiff, not only with the sum specified in the contract, but with every other sum to which he is entitled in the accounting. This is conclusive as to our jurisdiction upon this writ of error.

It was not claimed on the trial, nor is it contended here, that the company made any statement or representation as to the nature or character of the false work it did, and which, by the contract, Hamilton agreed to assume and pay for. But there was evidence tending to show that the insufficiency of that false work was unknown to Hamilton at the time the contract was made; was not apparent upon any examination he then or could have made; and was not discovered, indeed, could not have been discovered, until, during the progress of the erection of the bridge, the false work was practically tested.

The court, among other things, instructed the jury, at the request of plaintiff, and ov r the objections of the defendant, that by the contract-looking at all the circumstances attending its execution and giving to its terms a fair and reasonable interpretation-there was an implied warranty upon the part of the company that the false work it did, and which plaintiff agreed to assume and pay for, was suitable and proper for the purposes for which the bridge company knew it was to be used. This instruction was accompanied by the observation that if the evidence showed 'that the particular work which was said to be defective was such that the plaintiff could not by examination ascertain its defects for if they were apparent by mere examination of the false work it was the duty of the plaintiff to make that good-he had the right to rely upon the implied warranty; that is, if the defects were such that they could not be, by ordinary observation and care on behalf of the plaintiff, ascertained and found out.' That instruction presents the only question we deem necessary to determine. Although there are several assignments of error, they depend, as counsel for plaintiff in error properly concede, upon the inquiry whether the court erred in ruling that by the terms of the contract there was an implied warranty that the false work constructed by the bridge company was suitable and proper for the purposes for which it was to be used by Hamilton.

The argument in behalf of plaintiff in error proceeds upon the ground that there was a simple transfer by the company of its ownership of the work and materials as they existed at the time of the contract; that Hamilton took the false work for what it was, and just as it stood; consequently, that the rule of caveat emptor applies with full force. The position of counsel for Hamilton is that, as in cases of sales of articles by those manufacturing or making them, there was an implied warranty by the bridge company that the work sold or transferred to Hamilton was reasonably fit for the purposes for which it was purchased. The cases in which the general rule of caveat emptor applies are indicated in Barnard v. Kellogg, 10 Wall. 388, where, speaking by Mr. Justice DAVIS, the court observed that 'no principal of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies.' An examination of the ground upon which some of the cases have placed the general rule, as well as the reasons against its application, under particular circumstances, to sales of articles by those who have manufactured them, will aid us in determining how far the doctrines of those cases should control the one before us.

The counsel for the bridge company relies upon Parkinson v. Lee, 2 East, 314, as illustrating the rule applicable in ordinary sales of merchandise. That case arose out of a sale of five pockets of hops, samples of which were taken from each pocket and exhibited at the time of sale. The question was whether, under the circumstances of that case,-there being no express warranty and no fraud by the seller,-there was an implied warranty that the commodity was merchantable. It was resolved in the negative upon the ground that it was the fault of the buyer that he did not insist on a warranty; the commodity was one which might or might not have a latent defect, a fact well known in the trade; and since a sample was fairly taken from the bulk, and the buyer must have known, as a dealer in the commodity, that it was subject to the latent defect afterwards appearing, he was held to have exercised his own judgment and bought at his own risk. But of that case, it was observed by Chief Justice TINDAL in Shepherd v. Pybus, 3 Man. & G. 880, that two of the judges participating in its decision laid 'great stress upon the fact that the seller was not the grower of the hops, and that the purchaser, by the inspection of the hops, had as full an opportunity of judgment of the quality of the hops as the seller himself.' There was, consequently, nothing in the circumstances to justify the buyer in relying on the judgment of the seller as to the quality of the commodity. It is also worthy of remark that in Randall v. Newson, 2 Q. B. Div. 106, it was said of Parkinson v. Lee, that 'either it does not determine the extent of the seller's liability on the contract, or it has been overruled.'

In Brown v. Edgington, 2 Man. & G. 279, the plaintiff sought to recover damages resulting from the insufficiency of a rope furnished by the defendant upon plaintiff's order, to be used, as defendant knew, in raising pipes of wine from a cellar. The defendant did not himself manufacture the rope, but procured another to do so, in order that he, defendant, might furnish it in compliance with plaintiff's request. TINDAL, C. J., said:

'It appears to me to be a distinction well founded, both in reason and on authority, that if a party purchases an article     upon his own judgment he cannot after wards hold the vendor      responsible, on the ground that the article turns out to be      unfit for the purpose for which it was required; but if he      relies upon the judgment of the seller, and informs him of      the use to which the article is to be applied, it seems to me      the transaction carries with it an implied warranty that the      thing furnished shall be fit and proper for the purpose for      which it was designed.'

In Shepherd v. Pybus, supra, the question was whether, upon the sale of a barge by the builder, there was a warranty of fitness for the purpose for which it was known by the builder to have been purchased. It was held that the law implied such a warranty. The ground of the decision was that the purchaser had no opportunity of inspecting the barge during its construction, having seen it only after completion; that the defects afterwards discovered were not apparent upon inspection, and could only be detected upon trial.

In Jones v. Just, L. R. 3 Q. B. 203, upon an extended review of the authorities, the court classified the adjudged cases bearing upon the subject of implied warranty, and said that 'it must be taken as established that on the sale of goods by a manufacturer or dealer, to be applied to a particular purpose, it is a term in the contract that they shall reasonably answer that purpose, and that on the sale of an article by a manufacturer to a vendee who has not had the opportunity of inspecting it during the manufacture, that it shall be reasonably fit for use or shall be merchantable, as the case may be.'

Other cases might be cited, but these are sufficient to show the general current of decision in the English courts.

The decision in the American courts do not indicate any substantial difference of doctrine. A leading case upon the subject, where the authorities were cafully examined and distinguished, is Hoe v. Sanborn, 21 N. Y. 552. The decision there was that 'where one sells an article of his own manufacture which has a defect produced by the manufacturing process itself, the seller must be presumed to have had knowledge of such defect, and must be holden, therefore, upon the most obvious principles of equity and justice,-unless he informs the purchaser of the defect,-to indemnify him against it.' In Cunningham v. Hall, 4 Allen, 273, the cases of Hoe v. Sanborn, and Shepherd v. Pybus, and Brown v. Edgington, ubi supra, are cited with approval. In Rodgers v. Niles, 11 Ohio St. 53, the supreme court of Ohio recognizes among the exceptions to the general rule cases 'where it is evident that the purchaser did not rely on his own judgment of the quality of the article purchased, the circumstances showing that no examination was pos ible on his part, or the contract being such as to show that the obligation and responsibility of ascertaining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an articel for a particular purpose or use.' So in Leopold v. Van Kirk, 27 Wis. 154: 'The general rule of law with respect to implied warranties is well settled that, when the manufacturer of an article sells it for a particular purpose, the purchaser, making known to him at the time the purpose for which he buys it, the seller thereby warrants it fit and proper for such purpose, and free from latent defects.' So, also, in Brenton v. Datis, 8 Blackf. 318: 'We consider the law to be settled that if a manufacturer of an article sells it at a fair market price, knowing the purchaser designs to apply it to a particular purpose, he impliedly warrants it to be fit for that purpose; and that if, owing to some defect in the article, not visible to the purchaser, it is unfit for the purpose for which it is sold and bought, the seller is liable on his implied warranty.' 2 Story, Cont. (5th Ed. by Bigelow,) § 1077; 1 Chit. Cont. (11th Amer. Ed.) 631, 632, note m; Add. Cont.c. 7, § 1, p. 212.

The authorities to which we have referred, although differing in the form of stating the qualifications and limitations of the general rule, yet indicate with reasonable certainty the substantial grounds upon which the doctrine of implied warranty has been made to rest. According to the principles of decided cases, and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circumstances of the particular case, the buyer had the right to rely, and necessarily relied, on the judgment of the seller and not upon his own. In ordinary sales the buyer has an opportunity of inspecting the article sold; and the seller not being the maker, and therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. If there be in fact in the particular case any inequality, it is such that the law cannot or ought not to attempt to provide against; consequently, the buyer in such cases-the selling giving no express warranty and making no representions tending to mislead-is holden to have purchased entirely on his own judgment. But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process and against which reasonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use.

Whether these principles control, or to what extent they are applicable in the present case, we proceed to inquire. Although the plaintiff in error is not a manufacturer, in the common acceptation of that word, it made or constructed the false work which it sold to Hamilton. The transaction, if not technically a sale, created between the parties the relation of vendor and vendee. The business of the company was the construction of bridges. By its occupation, apart fro its contract with the railroad company, it held itself out as reasonably competent to do work of that character. Having partially executed its contract with the railroad company, it made an arrangement with Hamilton whereby the latter undertook, among other things, to prepare all necessary false work, and, by a day named, and in the best manner, to erect the bridge then being constructed by the bridge company Hamilton to assume and pay for such work and materials as that company had up to that time done and furnished. Manifestly, it was contemplated by the parties that Hamilton should commence where the company left off. It certainly was not expected that he should incur the the expense of removing the false work put up by the company and commence anew. On the contrary, he agreed to assume and pay for, and therefore it was expected by the company that he should use, such false work as it had previously prepared. It is unreasonable to suppose that he would buy that which he did not intend to use, or that the company would require him to assume and pay for that which it did not expect him to use, or which was unfit for use. It is suggested that, as Hamilton undertook to erect the bridge in a thorough and workmanlike manner, he was not bound to use the false work put up by the company, and that if he used it in execution of his contract, he did so at his own risk, This is only one mode of saying that, in the absence of an express warranty or fraud on the part of the company, the law will not, under any circumstances, imply a warranty as to the quality or sufficiency of this false work.

But the answer to this argument is that no question was raised as to its sufficiency; that, while Hamilton must be charged with knowledge of all defects apparent or discernible upon inspection, he could not justly be charged with knowledge of latent defects which no inspection or examination, at or before the sale, could possibly have disclosed. The jury have, in effect, found the false work to have been insufficient, in that the piles were not driven deep enough; that had they been properly driven, the work would have answered the purposes for which Hamilton purchased it; and that he could not have ascertained such defects in advance of an actual test made during the erection of the bridge. It must be assumed that the company knew, at the time of sale, that Hamilton could not, by inspection, have discovered the latent defects which were subsequently disclosed. And if it be also assumed, as it fairly may be, that Hamilton, being himself a bridge builder, knew that there might be latent defects in this false work, caused by the mode of its construction, and beyond his power by mere inspection to ascertain, it must not be overlooked that he also knew that the company, by its agents or servants, were or should have been informed as to the mode in which the work had been done. That he did not exact an express warranty against latent defects, not discoverable by inspection, constitutes, under the circumstances, no reason why a warranty may not be implied against such defects as were caused by the mode in which this false work was constructed. In the cases of sales by manufacturers of their own articles for particular purposes, communicated to them at the time, the argument was uniformly pressed that, as the buyer could have required an express warranty, none should be implied. But, plainly, such an argument impeaches the whole doctrine of implied warranty, for there can be no case of a sale of personal property in which the buyer may not, if he chooses, insist on an express warranty against latent defects.

All the facts are present which, upon any view of the adjudged cases, must be held essential in an implied warranty. The transaction was, in effect, a sale of this false work, constructed by a company whose business it was to do such work; to be used in the same way the maker intended to use it, and the latent defects in which, as the maker knew, the buyer could not, by any inspection or exam nation, at the time discover; the buyer did not, because in the nature of things he could not, rely on his own judgment; and, in view of the circumstances of the case, and the relations of the parties, he must be deemed to have relied on the judgment of the company, which alone of the parties to the contract had or could have knowledge of the manner in which the work had been done. The law, therefore, implies a warranty that this false work was reasonably suitable for such use as was contemplated by both parties. It was constructed for a particular purpose, and was sold to accomplish that purpose; and it is intrinsically just that the company, which held itself out as possessing the requisite skill to do work of that kind, and therefore as having special knowledge of its own workmanship, should be held to indemnify its vendee against latent defects, arising from the mode of construction, and which the latter, as the company well knew, could not, by any inspection, discover for himself.

For the reasons stated, we are of opinion that the court did not err in the law of the case, and the judgment must be affirmed.


text: Talk:Kellogg Bridge Company v. Hamilton/Opinion of the Court

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text:
Allen v. Withrow

C. C. Cole and G. W. Kretzinger, for appellants.

''Thos. F. Withrow and Geo. G. Wright'', for appellees.

FIELD, J.

title: Allen v. Withrow


text: Talk:Allen v. Withrow

title: Talk:Allen v. Withrow


text:
Allen v. Withrow/Opinion of the Court

In November, 1875, one John F. Tracey, now deceased, executed to the defendant Thomas F. Withrow a deed of a large amount of property, real and personal, of great value, situated in Iowa. It is alleged that this deed, though absolute in form, was made in trust for one Thusie M. Allen, also now deceased, and the present suit is brought by her heirs at law to charge Withrow, as trustee, and compel him to account to them for the property. Withrow denies the alleged trust, and claims that he owns, in his own right, an undivided half interest in the property, and that the other undivided half belongs to his co-defendant, William L. Scott, as assignee of Tracey. Scott has filed a cross-bill, setting up his title and praying that it may be established. The court below sustained the claims of both defendants, and dismissed the bill, and the case is brought here on appeal from its decree.

The facts which led to the execution of the deed in question, and upon which a trust is sought to be established, collected, so far as practicable, from a mass of conflicting testimony, contained in a record of over 850 closely printed pages, are substantially as follows: In the year 1868, when the Chicago, Rock Island & Pacific Railroad Company-a corporation created by the state of Illinois-was about to extend its road from Des Moines to Council Bluffs, in Iowa, a company was formed, consisting of B. F. Allen, of Des Moines, Ebenezer Cook and John P. Cook, of Davenport, in that state, to purchase land necessary for the stations and use of the railroad company between De Sota and Council Bluffs, and also other lands adjoining or near the several stations located by the engineer of the company. The agreement between the parties was at the time a verbal one, but in April, 1870, a memorandum was signed by them, giving its terms, and reciting also the purchases which in the interval had been made. Among other things, it provided that Allen should furnish the money to make the purchases, and provide for the taxes and expenses; that the title to the property should be taken in his name as trustee for the joint account of the parties; and that the net proceeds should be divided between them, as follows: One undivided half to Ebenezer Cook, one-fourth to Allen, and the remaining fourth to John P. Cook. The agreement also provided that Allen should keep an account of the amounts paid out by him, and of the sales, receipts, and expenses, so that from his books a statement might at any time be made, showing the condition of the property, the amount sold, and the prices received; that the sales should be made by John P. Cook and Allen, on the best terms they could obtain, and by their joint action when practicable; that from the proceeds of the sales Allen should retain the interest on his advances, the taxes on the property, and the expenses incurred, and then pay the advances made for the purchase of the property; and that the money and property remaining in his possession, including notes and contracts, after such payments, should be regarded as net profits, and be divided in kind, or converted into money and then distributed, and in either event according to the respective interests of the parties as mentioned above.

During this time Tracey was president of the railroad company, and, though he is not named in the agreement, it is conceded that he was entitled to one-half of the interest represented by Ebenezer Cook, and had a right to control and dispose of it. It appears that he had, previously to the formation of the land company, suggested to different parties that in case a litigation then pending, affecting the company, should terminate favorably, a good opportunity would be afforded to make a successful venture in the purchase and sale of land along the line of the road west of Des Moines; and that upon this suggestion the land company was formed. It appears, also, that in a conversation with Withrow, one of his counsel in the litigation referred to, upon the subject f a venture of this kind, Tracey had expressed a desire that his friends should be benefited by the venture; and that he, Withrow, should participate in it, advising him to bear this in mind in making out his bill for legal services. After the land company was formed, and the agreement made had been acted upon, Tracey was reminded by Withrow of this conversation, and of the understanding he had from it that he was to have an interest in the venture. Tracey not only admitted a similar understanding on his part, but declared that Withrow had an interest in it, and in March, 1871, obtained from Ebenezer Cook a statement in writing to that effect. This statement, after referring to the agreement of the land company, and the provision that one-half of the profits arising from the purchase and sale of real estate under it were to be his property; and reciting that it was understood that Withrow and one Johnson should have an interest in the profits of the venture, the amounts of which had not been specified, but were to be thereafter fixed by Tracey and himself, and that the remainder of said profits (if any) should be equally divided between Tracey and himself,-declares that he, Cook, holds the interest specified in the agreement, and all amounts to be received thereon, in trust for the uses and purposes mentioned; that is to say, to pay from such receipts to Withrow and Johnson such amounts, respectively, as should be agreed upon as aforesaid, and to hold the one-half of the remainder in trust for Tracey, his heirs and assigns.

Subsequently, in October, 1872, Withrow, for the nominal consideration of one dollar, executed to Tracey a transfer of his interest in this contract and declaration of trust. In December following, Johnson executed to Tracey a similar transfer upon a like consideration. Withrow testifies that this transfer was made by him, not for the purpose of conveying the ownership of his interest to Tracey absolutely, but to facilitate a settlement with Allen of the affairs of the land company, which were embarrassed by improvident expenditures, and with an understanding that if Tracey realized anything out of the venture he should give Withrow his share. This testimony is corroborated by the statement contained in the deed subsequently executed by Tracey to Scott, that the transfer by Withrow was made upon an agreement that his interest should be protected for his benefit.

In November, 1875, Tracey executed to Withrow a deed of all the interest which he then had, or which might thereafter accrue to him, in the lands, notes, and bills receivable arising from the contracts, declaration of trust, and assignments mentioned. This deed recites the original agreement between Allen and the two Cooks, the subsequent declaration by Ebenezer Cook of the interest of Withrow, Johnson, and Tracey in the proceeds of the venture, and the transfers executed in 1872 by Withrow and Johnson to Tracey, and, in addition to conveying the property, authorizes the grantee, in his own name, to enforce a proper partition of it, and to collect for his own use any sums of money which might accrue to the grantor under the contracts, declaration of trust, and assignments mentioned. Previously to the execution of this deed to Withrow, Allen had become bankrupt, and in due course of proceedings his property had been transferred to Hoyt Sherman, as assignee in bankruptcy. Subsequently a suit was commenced in the circuit court of the United States involving the title to the whole of the property of Allen in the land company. In that suit the Charter Oak Life Insurance Company and others were complainants, and Allen, and Sherman his assignee in bankruptcy, were defendants. Withrow intervened and filed a cross-bill, claiming partition of the interest of Tracey held by him under the deed of November, 1875. By the decree of the court, entered in the fall term of 1877, which appears to have been made upon a compromise settlement, Withrow's title to an interest of one-fourth in the property of the land company was recognized, and set apart to him in severalty. The value of this interest had been previously appraised by competent parties, acting under the authority of the court, at $80,000. Tracey died in February, 1878. In December previously he addressed a communication to the defendant, William L. Scott, in which, after reciting that there had been reserved to him and parties interested with him a one-fourth interest in the land company, which he had deeded to Withrow, he says as follows:

'I hereby acknowledge that of the interest so belonging to     me, you (William L. Scott) were the original owner of      one-eight of the entire company, or one-half owner of the      interest statding in my name, and I hereby authorize T. F.      Withrow to transfer and deed to you one-half of the interest      conveyed by me to him, you paying Mr. Withrow one-half of all      expenses and charges the interest held by me may be liable      for.'

Soon afterwards Tracey made a formal deed to Scott conveying to him an undivided half of the lands, notes, contracts, and mortgages awarded and set apart to Withrow by the decree of the circuit court of the United States under the deed of Tracey to him of November 16, 1875, and instructing Withrow to transfer that interest to Scott. This deed recites, among other things, that Withrow had transferred his interest to Tracy under an agreement between them that the same should be protected by Tracey for his (Withrow's) benefit; that one-half of Tracey's interest in the lands and assests conveyed by his deed to Withrow was for the use of Withrow in his own right; that the other half was in trust for Tracey, his heirs and assigns; and that Withrow was 'entitled, in his own right, to one-half, in value, of all lands, contracts, notes, and mortgages which have been awarded and set apart to him, and holds the other one-half thereof in trust for the said John F. Tracey, his heirs, executors, and assigns.'

Upon these deeds of Tracey-the one to him of November 16, 1875, and the deed to Scott of December 12, 1877-the defendant Withrow relies to defeat the suit of the complainants. Their ground for charging him as trustee is the alleged purpose of Tracey to give to Mrs. Allen the beneficial interest in the property held by him in the land company, and its execution by his deed to Withrow. Their story of this purpose and its supposed execution is this: That sometime in June, 1875, Allen and his eldest daughter accompanied him, by his invitation, on an excursion to St. Paul, Minnesota, given by the directors of the Northwestern Railway Company; that during the excursion Tracey had several conversations respecting Allen's circumstances since his bankruptcy, and especially as to its effect upon the property and affairs of the land company, and that they resulted in Tracey's promising to give his interest in the property of that company to Mrs. Allen, with whom he was well acquainted, and of whom he had pleasant recollections; that after the return of Allen to Chicago he went to the office of Withrow and engaged him to prepare the deed for Tracy to sign; that Withrow accordingly drew a deed of transfer of Tracey's interest, specifying it to be one undivided fourth of the net profits arising from the joint account under the contracts and declaration of trust; that the name of the grantee was left in blank; that Allen went to New York, taking this deed with him, and that Tracey there, on the eleventh day of October, 1875, signed and acknowledged it, and delivered it to Allen; that Allen returned to Des Moines and delivered the deed to his wife; and that the reason why the name of the grantee was left in blank was because he feared the importunities of his creditors to obtain the property, and that Tracey authorized him to insert her name in the blank, or the name of any other person that might be deemed best.

The story further is that afterwards Allen consulted Charles T. Ransom, an attorney at law at the time in Des Moines, respecting the insertion of the name of a grantee, and while in consultation another lawyer by the name of Edmunds came into his room, and the whole matter of Tracey's rights in the property of the land company being discussed, it was the opinion of both Edmunds and Ransom that his interest was one-half; and for that reason it was resolved to procure a new deed specifying such to be his interest instead of one-fourth; that the question of a proper person to whom such new conveyance should be made was discussed, and the name of Withrow was finally settled upon as trustee; that Withrow was advised of this fact and assented to it; that thereupon another deed, substantially like the first, except that its recital showed Tracey's interest to be one-half, was prepared by Ransom and taken by him to New York, and was there executed by Tracey, to whom the reason for changing the form of the deed was explained; that Ransom brought this second deed to Iowa and handed it to Allen who delivered it to his wife, and it was kept by them until February 24, 1876, when it was sent to Ransom for his use in preparing a petition of intervention and other pleadings in the case of the Charter Oak Life Insurance Company and others against Allen and Sherman, his assignee, then pending in the circuit court; that it was not delivered to Withrow until about the time the decree was rendered, in 1877; that, after that decree, Allen called upon Withrow to turn the property over to the heirs of his deceased wife; and that Withrow then, for the first time, claimed to own one-eighth of the property, or one-half of what had been recovered, in his own right, and refused to convey the other half except upon the written order of Tracey; and that he has ever since maintained this position.

The statement that the deed with a blank for the name of the grantee was drawn to transfer an interest to Mrs. Allen, or to create a trust in her favor, is contradicted by the testimony of Withrow, who says that it was a substitute for one drawn to Schuyler R. Ingham, recommended by him as a proper person to take charge and dispose of the interest of Tracey in the property of the land company; that the execution of the deed to Ingham having been delayed for a long time, Allen suggested that a new deed, with the name of the grantee in blank, should be sent to Tracey, so that some other person, if Ingham was not acceptable to him, might be inserted, stating that Tracey had promised to convey his interest to Withrow, and that if, in winding up the affairs of the company, there was anything left of it, he would give it to Mrs. Allen. The deed itself shows, by its use of the masculine pronoun in all places where reference to the grantee is made, that the draughtsman never contemplated its execution to a woman. Subsequently, according to the testimony of Withrow, the deed was shown to Ransom, who advised that the interest of Tracey in the property of the land company was one-half instead of one-fourth; and who, at the request of Allen, drew another deed for Tracey to sign similar to the one in blank, except that it represented Tracey's interest to be one-half of the property and made Withrow the grantee.

The statement that Withrow consented to act as trustee of Mrs. Allen, or that the deed of Tracey to him was executed upon any trust for her, is also denied by Withrow; and it is inconsistent with the declarations and conduct of both himself and Tracey. Immediately upon the request of Allen for the property, and under date of December 8, 1877, he wrote to Tracey, informing him of the decree of the circuit court, and the request of Allen, and the refusal to comply with it in the absence of instructions from him. 'You will remember,' he writes, 'that one-eighth interest of the entire speculation was awarded to me. The other eighth of the property recovered by me I hold subject to your order. I have understood from Mr. Ransom, and have inferred from your conversation with me, that before the commencement of this suit you intended to be liberal to Mrs. Allen in disposing of your share; and Mr. Allen, relying upon this, has requested me to convey the one-eighth interest which I hold for you to him. In view of the fact that I have never received definite instructions from you to make any disposition of it, and the further fact that Mrs. Allen is now dead, I have not felt at liberty to make any conveyance without instructions from you in writing.'

No answer was made to this letter, nor was any instruction given by Tracey as to his wishes or intentions on the subject, except such as are found in the paper addressed to William L. Scott, under date of December 12, 1877, and in the deed executed to him soon afterwards; and these, as already seen, negative the idea that Withrow was to hold the property for the benefit of Mrs. Allen. In this communication, it is seen, Withrow asserts a right to one-eighth interest in the entire property of the land company, as having been awarded to him. If this claim of an interest in the property had been a false and fraudulent one, set up to defraud others, we should expect some denial of it from Tracey; but instead of that we find its correctness affirmed by him. It is difficult to believe that a claim for property, estimated at the time to be worth $40,000, would have received recognition from one who, if the claim was fraudulent, knew it to be so. On the contrary, we should expect that it would meet with instant and indignant repudiation. But if we admit the statement of the complainants as to the alleged promise of Tracey to give his interest in the property of the land company to Mrs. Allen, and as to the execution of the two deeds,-the one in blank and the one to Withrow,-there is no case shown for the relief prayed by the bill. The promise alleged to have been made in conversation with Allen and his daughter on the trip to St. Paul was without consideration, good or valuable; there was no relationship, by blood or marriage, between Mrs. Allen and Tracey. It was the promise of a pure donation to be subsequently made; and, until executed, it was, in a legal view, valueless.

The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. It may be and probably is the law in Iowa, as it is in several states, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize another party, by parol, to fill up the blank. Swartz v. Ballou, 47 Iowa, 188; Van Etta v. Evenson, 28 Wis. 33; Field v. Stagg, 52 Mo. 534. As said by this court in Drury v. Foster, 2 Wall. 33: 'Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is that the power is sufficient.' But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it: the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen, to whom it is stated the deed was handed, with authority to fill the blank and then deliver the deed, gave it to his wife without filling the blank, and she died with the blank unfilled. The deed of Tracey to Withrow embraced real as well as personal property. It was for the purchase and sale of real property that the land company was formed, and by the terms of the contract of association all the property of the company remaining after payment of taxes, expenses, and advances was to be deemed profits, and divided in kind or converted into money and then distributed. Though the declaration of trust by Ebenezer Cook speaks of the interest of Tracey in the land company as an interest in its 'profits,' that term is used with reference to its meaning as declared in the contra t of association, to which that declaration of trust refers, and to which it is annexed.

In the partition by the decree of the circuit court of the United States of the interest conveyed to Withrow, 'lands, lots, notes, contracts, and mortgages' are specified as awarded and set apart to him. So far as the real property is concerned, no trust in relation to it could be established under the statute of frauds of Iowa in force when the deed of Tracey was signed, except by an instrument in writing executed in the same manner as a deed of conveyance. The language of the statute is: 'Declarations, or creations of trust, or powers in relation to real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law.' The statute also enumerates, among the contracts in reference to which no evidence is competent unless it be in writing, and signed by the party or his lawfully authorized agents, 'those for the creation or transfer of any interest in lands, except leases for a time not exceeding one year.' So far as the personal property conveyed to Withrow is concerned, it must be admitted that a trust may be established by parol evidence; but such evidence must be clear and convincing, not doubtful, uncertain, and contradictory, as in this case. The evidence must consist of something more than loose conversations with third parties. The declarations of the grantor relied upon must be made at the time of his conveyance, or while he retains an interest in the property, and be so connected with the conveyance as to justify the conclusion that it was made or is held in execution of the purposes declared. Declarations of a purpose to create a trust not carried out are of no value, nor are direct promises to that effect unaccompanied with considerations turning them into contracts.

The deed of November 16th was handed to Ransom to be delivered to Withrow without any declaration from Tracey as to the purpose for which it was made or the considerations by which it was supported. Nothing was said at that time which could change the absolute character of the instrument, nor is there any evidence of any declarations subsequently made, by parol or in writing, by the grantor with respect to that deed, except such as are found in the communication to Scott and the deed to him. It does not affect the conclusion, therefore, whether we treat the whole property conveyed to Withrow as real or personal property, or as consisting of both. Real property owned by a partnership and purchased with partnership funds is, for the purpose of settling the debts of the partnership and distributing its effects, treated in equity as personal property. It matters not whether it be so treated here. In any view, no legal trust was created with respect to the property in favor of Mrs. Allen which she could have enforced had she been living, or which can now be enforced by her heirs at law.

Decree affirmed.

title: Allen v. Withrow/Opinion of the Court


text: Talk:Allen v. Withrow/Opinion of the Court


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Bussey v. Excelsior Manufacturing Company

[Syllabus from pages 131-132 intentionally omitted]

''Chas. J. Hunt'', for Bussey and another.

Samuel A. Duncan, for Excelsior Manuf'g Co.

BLATCHFORD, J.


text: Talk:Bussey v. Excelsior Manufacturing Company


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The New International Encyclopædia/Ottendorfer, Oswald

OT′TENDOR′FER, (1826-1900). A German-American journalist, he was born at Zwittau, Moravia, studied jurisprudence at Vienna, and was among those German youth who, after participating in the revolutionary troubles of 1848, sought refuge in America. Coming to New York, he acquired control of the New-Yorker Staats-Zeitung, which, at first Democratic in politics, but after 1871 independent, has taken rank as the foremost German-American daily. He largely endowed various institutions in his native town of Zwittau, and to New York presented a fully equipped free library. Some years previous to his death ill health necessitated his retirement from active journalistic work.


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Bussey v. Excelsior Manufacturing Company/Opinion of the Court

This is a suit in equity brought in the circuit court of the United States for the Eastern district of Missouri, by Esek Bussey and Charles A. McLeod against the Excelsior Manufacturing Company of St. Louis, a corporation, for the infringement of three-several letters patent, being (1) reissue No. 3,815, granted to the plaintiffs, February 1, 1870, for a 'cooking-stove,' the original patent, No. 56,686, having been granted to said Bussey, as inventor, July 24, 1866, and reissued to him, as No. 3,649, September 28, 1869; (2) letters patent No. 142,933, granted to David H. Nation and Ezekiel C. Little, as inventors, September 16, 1873, for an improvement in reservoir cooking-stoves;' (3) letters patent No. 142,934, granted to said Nation and Little, as inventors, September 16, 1873, for an 'improvement in reservior cooking-stoves.' After an answer and proofs the circuit court made a decree finding no infringement of No. 3,815 and dismissing the bill as to that patent; decreeing that the other two patents were valid and had been infringed as to all their claims; and awarding a perpetual injunction as to those claims, and an accounting before a master. The master reported one cent damages. The plaintiffs excepted to the report, claiming $14,972 damages. The court confirmed the report and made a decree accordingly, which also provided that the entire costs to be taxed in the suit should be divided and that the plaintiffs should pay five-sevenths of them and the defendant two-sevenths. Both parties appealed to this court.

The specification of No. 3,815 says: 'Figure 1 is a side elevation; Figure 2, a rear elevation; Figure 3, a plan; Figure 4, a vertical section at the line, z, z; Figure 5, a front view of a section at the line, y, y; and Figure 6, a top view of a partial section at the line, x, x, all of a cooking-stove embodying my said invention, like parts being marked by the same letters in all the figures, and the arrows therein being indicative of the courses in which the gases of combustion pass through the stove. One part of my invention consists in arranging a culinary boiler or hot-water reservoir in the rear of the oven of a diving-flue cooking-stove, with an exit-flue extending down the front under the bottom and up the rear of the said reservoir, substantially as hereinafter described and specified. It also consists in arranging a culinary boiler or hot-water reservoir in the rear of the oven of a diving-flue cooking-stove, with an exit-flue leading from some point in the rear of the vertical flue or flues below the top of the said oven, and continuing under the bottom and up the rear side of said reservoir, substantially as hereinafter described and specified. It also consists in the arrangement of a diving-flue cooking-stove, with an exit passage constructed in the vertical rear flue or flues thereof, and below the top of the over, in such a manner that the gases of combustion, after passing through such exit-passage, will impinge upon or come in contact with the bottom or sides of a reservoir placed in the rear of the stove, and just above said exit-passage, substantially as hereinafter described and specified. It also consists in the employment of a thin plate or sheet of metal between the front plate of the reservoir and the rear-end vertical flues of the said stove, substantially as shown and specified. In illustration of my invention, the aforesaid drawings represent a cooking-stove having an oven, A, a culinary boiler or hot-water reservoir, B, arranged opposite to the rear upright side or end, d, of the over, and an exit-flue, E, E', extended from the central vertical flue, K, of said stove at a point below the top of the oven, under or across the bottom, g, of the reservoir, and from thence up along the rear upright side of said boiler or reservoir to the draft-pipe, I. For the purpose of allowing the boiler to heat more readily, a portion of the rear end vertical plate of said stove is removed, so as to uncover the upper portion of the rear-end vertical flues, and the front of the boiler is attached to the rear of said flues, in the manner shown and described in my reissued patent of July 24, 1866. Between the inner side of the boiler, B, and the rear end vertical flues, K, and L, L', a plate may be employed, indicated by dotted line, w, w. The object of this plate is as follows: It has been ascertained by experience that when during the use of the oven for baking purposes, a large quantity of cold water is suddenly poured into the reservoir, and there is nothing between the front of the boiler and gases of combustion passing through the rear end vertical flues, the heat of the said gases will be so much absorbed by the reservoir as to sensibly cool the oven and interfere with the process of baking. To obviate this I employ the thin plate, w, w, placed between the front of the reservoir and the said rear end vertical flues, and which, while it allows sufficient heat to pass through it to aid in hearting the boiler, protects the front thereof from the direct impact of the gases of combustion, and preserves an equable heat in the oven. In case the said plate is dispensed with the inner side, J, of the said boiler will form a part of the lateral rear casing of the said rear end vertical flues, and will be heated by direct contact with the gases of combustion as they pass down and up the same. M is the fire-box, and N and R the top and bottom flues of said stove. The operation of my said invention is as follows: A fire being kindled in the fire-box, M, and the damper, Q, at the top of the oven being open, so as to allow of a direct draft, the gases of cumbustion from the said fire-box will pass down the middle vertical flue, K, through the exit-passage, F, and exit-flue, E, E', to the smoke-pipe I, heating the contents of the reservoir in its passage through the exit-flue, as aforesaid. By this mode of construction I am enabled to obviate what has been heretofore the greatest objection to reservoir-stoves of this class, namely, that the reservoirs would not heat with a direct draft. It will also be observed that, by this device of constructing the exit-passage below the top of the oven, I can at the same time, by a direct draft, heat the rear side of the oven and the reservoir, instead of wasting the heat by carrying it directly to the chimney. When the damper, Q, is closed, for the purpose of heating the oven, the gases of combustion will pass down the side vertical flues, L, L', and under the bottom of the oven, returning through a central horizontal flue to the central vertical flue, K, from which they pass through the exit-flue, E, E', as aforesaid. I am aware that cooking-stoves have been in use in which the reservoir has been incased or inclosed on all sides except the top by a kind of expanded flue, through which the gases of combustion are made to pass. The advantages of my plan over this device are twofold: First, it is much more economical, requiring far less material and labor to construct it; and, second, by confining the heat and gases of combustion to a small space at the bottom and rear of the reservoir, the contents thereof will be much more effectually heated than where the products of combustion are admitted to an extensive flue-space and permitted to rise and expend their heat at or near the top of the reservoir.'

The claims of the patent, the first four only of which are alleged to have been infringed, are as follows: '(1) A diving-flue cooking-stove with the exit-flue so constructed as to inclose on the sides and bottom the culinary boiler or hot-water reservoir, B; (2) a diving-flue cooking-stove with the exit-flue constructed across the bottom and up the rear upright side of the culinary boiler or hot-water reservoir, B; (3) a diving-flue cooking-stove constructed with an exit-passage, F, below the top of the oven, and an exit-flue, E, E', in combination with an uncased reservoir, B, attached to the rear of the stove, and placed just above such exit passage, and so arranged that the gases of combustion, in passing through such exit-flue, will impinge upon or come in direct contact with said reservoir, substantially as and for the purposes hereinbefore specified; (4) an exit-passage, F, constructed in the rear of a diving-flue flue cooking-stove and below the top of the oven, in combination with an uncased reservoir, B, attached to the rear of the stove, the bottom of which reservoir is also below the top of the oven, and so arranged that the gases of combustion will come in contact with and heat such reservoir by a direct draft from the fire-box to the smoke-pipe; (5) in a cooking-stove wherein the rear-end vertical plate, or a portion of the same, has been removed for the purpose of heating a reservoir placed in the rear thereof, the shield-plate, w, w, in combination with the uncased reservoir, B, and the rear-end vertical flues, K, L, and L', substantially as and for the purposes hereinbefore described and specified.'

The defendant's stove has three flues and an exit passage below the top of the oven, and a reservoir, the bottom of which is below the top of the oven; but no part of the rear-end vertical plate is removed so as to allow the gases of combustion to come into direct contact with the front of the reservoir, nor is any such plate employed as the plate, w, w, of the patent, but there is a dead air-space between the rear plate of the flue and the front of the reservoir. The exit-flue is not a narrow one, carried across the middle of the bottom of the reservoir, as in the patent, but the products of combustion, on leaving the flue-space, pass into a chamber beneath the reservoir, the area of which is co-extensive with the entire surface of the bottom of the reservoir; and the vertical passage out of such chamber is not one outside of the rear of the reservoir, but is one in and through the body of the reservoir, and removable with it. In view of the earlier patents put in evidence, we are of opinion that the four claims in question must be limited to a structure in which the front of the reservoir has no air-space in front of it, and in which the exit-flue does not expand into a chamber at the bottom of the reservoir, and in which the vertical part of the exit-flue does not pass up through the reservoir. Under this construction there is no infringement of No. 3,815.

Claim 1, in requiring that the exit-flue shall 'inclose on the sides and bottom' the reservoir, requires, in the language of the text of the specification, that it shall extend 'down the front, under the bottom and up the rear' of the reservoir; and it does not admit of an air-space in front of the reservoir; nor is it limited to what is called a low-down boiler or reservoir. The Getz patent of 1840 shows an exit-flue passing under the bottom and up the rear side of a reservoir. The Spaulding or Paris patent of 1858 shows a diving-flue inclosing the bottom and one of the sides of a reservoir.

Claim 2 is not limited to a low-down boiler or reservoir. If a stove with an exit-flue constructed across the bottom and up the rear upright side of a boiler or reservoir existed before, there was nothing patentable in applying such construction to a diving-flue stove. The combination of exit-flue and reservoir with which claim 2 is concerned has no patentable relation to the arrangement of the internal flues of the stove. The Getz patent of 1840 shows an exit-flue extending across the bottom and up the rear upright side of a boiler. In the Stewart patent of 1859 the products of combustion enter a chamber under the reservoir and thence pass off by a pipe embraced within the walls of the reservoir. The exit-flue of claim 2 must, therefore, be limited to one which passes under the bottom of the reservoir without expanding into a chamber substantially co-extensive with the area of the bottom of the reservoir, as in the defendant's stove and in the Stewart patent of 1859; and also to one in which the escape-pipe is outside of the rear wall of the reservoir and not within the reservoir, as in the defendant's stove and in the Stewart patent of 1859.

Claim 3 adds to claim 2 only the feature of having the exit-passage or exit-orifice into the exit-flue below the top of the oven. There is no patentable relation between the combination of exit-flue and reservoir and the location of the exit-passage with reference to the oven, in view of the state of the art. In the Stewart patent of 1859 the exit-opening was on a level with the top of the oven and led into a chamber under the reservoir. In the Spaulding or Paris patent of 1858, and in the Bussey patent of 1865, the bottom of the reservoir was below the top of the oven. There was no invention in causing the gases to act on a low-down reservoir in the same way in which they had acted before on an elevated reservoir; and no invention in lowering the exit opening to correspond with the depression of the reservoir, even though the incidental effect was to heat by a direct draft, at the same time, the reservoir and the rear side of the oven.

Claim 4 adds to claim 3 only the feature of heating the reservoir by a direct draft from the fire-box to the smoke-pipe. This, however, is only a statement of the effect produced in a structure made according to the first three claims. In the Getz patent of 1840, and in the Stewart patent of 1859, the exit-pipe was in the rear of the reservoir, and the gases were brought into contact with the bottom of the reservoir, and it was heated by a direct draft. There is really nothing in claim 4 beyond what is found in claim 3.

The specification of No. 142,933 is as follows: 'Our invention relates to that class of cooking-stoves in which a water reservoir is situated at the rear end of the stove; and it consists in the arrangement of the reservoir upon an extended support at the rear of the stove, so that an air-chamber, opening at its top into the air of the room, is left between the back-plate of the stove and the front of the reservoir, thereby protecting the front of the same from becoming burned out by being in direct contact with the heat from the fire. it also consists in a broad sheet-flue arranged under the reservoir, the heated air for which enters through a small passage in the back plate of the stove, and, after circulating in said flue, passes out through the small opening in the rear thereof, all as more fully hereinafter set forth. * *  * Figure 1 is a longitudinal vertical section of our stove; figure 2 is a transverse vertical section of the same through the water-reservoir; figure 3 is a plan view of the reservoir; and figure 4 is a front view of the sheet-flue under the bottom of the reservoir. A represents the top plate of the stove. B is the oven; C, the water-reservoir; D, the center one of the three flues of the stove; and E, the exit-flue, located in the rear of the reservoir, C. This reservoir is located upon a support therefor, which extends rearward from a point about half-way between the top and bottom plates of the stove, and which may either be attached to or form part of the stove, and a sheet-flue, G, is provided in the same under the bottom of the reservoir, C. The heat, entering this flue, passes through the small center passage, a, in the stove-back, I. It is there spread and retained under the reservoir until it gradually ascends through the small passage or exit-flue, E. By this construction the rapid exit of the heated air from under the reservoir is prevented, and the heat, being retained under the bottom of the reservoir, causes the water in the same to become hot in a short time. The reservoir, C, is so arranged with respect to the TAI TABLE back-plate, I, of the stove that an air-space, b, communicating with the air of the room at the top, is left between the front of the reservoir and the back-plate. By this means the outside air will pass down between the back-plate and front of the reservoir and prevent the front of the reservoir from burning out, which would be the case if the parts were in direct contact, especially when the water in the reservoir becomes low. In the ordinary method the flame is made to strike directly upon the front surface of the reservoir, thereby rendering it liable to crack while replenishing with cold water upon the heated plates. The opening, a, in the back-plate, I, of the stove is of the same width as the center-flue, D, and the products of combustion pass through said opening into the sheet-flue, G, which thus has a contracted entrance and a contracted exit. When using the direct draft the damper, d, of the center flue, D, is turned downward and rests against the back-oven plate, as shown by the dotted lines in figure 1. At such times the heat passes down the center-flue, D, of the back, through the opening, a, in the back-plate, I, into the sheet-flue, G, under the bottom of the reservoir, and out of the exit-flue, E. When the indirect draft is used, the damper, d, occupies the position shown in flgure 1, and at such times the heat passes down the usual side-flues and under the bottom of the oven to the front of the stove, where it turns into the center-flue, D, and passes back through the opening, a, to the sheet-flue, G, under the bottom of the reservoir and out of the exit-flue. With a stove thus constructed, the reservoir is heated almost entirely from the bottom, and the heat acts upon the entire surface of the bottom of the reservoir, and when the reservoir is but partially filled there is no danger of the heat acting against, and burning out, the top part of the front side of the reservoir. We do not claim under this patent a flue-shell and rear central extension that is detachable from the stove-body by means of hooks on the one and catches or pins on the other, nor do we specifically claim a reservoir with a flue in its rear, as these elements of invention are the subject of a separate application for a patent, now pending; neither do we wish to be understood as claiming the arrangement of the reservoir and flues for heating the same in front of the fire-box of the stove, as shown in our patent of May 6 1873, No. 138,682.'

The claims of No. 142,933 are two in number, as follows, and the infringement of both is admitted; '(1) The combination with the back-plate, I, of the cooking-stove, A, of the reservoir, C, arranged on a support about midway between the top and bottom plates of the stove, and the air-chamber, b, between the stove-back and reservoir-front, open at the top and communicating with the air in the room, substantially as and for the purposes set forth. (2) The combination, with the stove, A, and reservoir, C, of the small opening, a, the sheet-flue, G, under the entire bottom of the reservoir, and the small exit-passage or pipe, E, all substantially as and for the purposes herein set forth.'

The point of invention in claim 1 is in so arranging the reservoir as to have an air space between the front plate of the reservoir and the back plate of the stove, to a sufficient extent to prevent the flame from striking against the upper part of the front plate of the reservoir, which it would do if the upper part of the back plate of the stove were cut away, and there were no such air-space. It is the upper part of the front side of the reservoir which, as the specification states, is liable to the burned out by the direct action of the flame, as the water in the reservoir is lowered. In the McDowell patent of 1871 all the upper part of the reservoir is protected by an air-space, open at the top, between the reservoir and the stove.

The point of invention in claim 2 is to take the gases through a small opening into a broad sheet-flue under the bottom of a reservoir and out through another small opening is the rear, so that they will circulate in the broad flue and act on the entire surface of the bottom of the reservoir. The Stewart patent of 1859 shows the same arrangement with an elevated reservoir, but there is no invention in applying it to a low-down reservoir. The Tiffany patent of 1869 shows the same arrangement with a low-down reservoir.

The specification of No. 142,934 says: 'The nature of our invention consists in the construction and arrangement of a cooking-stove with a portable basepan or flue-shell, and the means for attaching the same, as will be hereinafter more fully set forth. * *  * Figure 1 is a longitudinal vertical section of our improved cooking-stove; figure 2 is a side view of the rear end of the same; figure 3 is a plain view of a loose cover or plate for the base-pan; and figure 4 is a perspective view of the portable base-pan or fiue-shell. A represents the main baking-oven of the stove; B is the top flue; B, B, the vertical and horizontal side flues; C is the center flue; D is the base-pan or flue-shell; E, the exit-flue passing up the rear side of the reservoir TAI TABLE F is the reservoir; G, the warming-closet; H, the damper; I, THe fire-chamber; and J, the division-plate. When using the direct draft, the damper, H, occupies a line parallel with the back plate of the main oven, hanging down in the center flue of the back part of the stove. At such time the products of combustion pass from the fire chamber, I, along the top flue, B, and down the center flue, between the back oven-plate and the division-plate J, into the base-pan, D, and out of the exit-flue, E. When using the indirect draft the damper, H, occupies the position shown in figure 1. At such time the products of combustion pass over the top oven-plate flue, B, and down the vertical end-flues, B', into corresponding flues at the bottom, making the turn into the center flue of the bottom at C, through said bottom center flue, into and through the rear center flue, through the division-plate, J, into the base-pan flue, D, and out of exit-flue, E, so that, whether using the direct or indirect draft, the reservoir is heated only on its bottom surface. The base-pan, D, is made separate from the stove, and provided on each side with a hook-projection, a, to be fastened on a pin, b, projecting from the side of the stove. By this means the base-pan can readily be attached and detached; and when attached it fits in the upper end and forms the top of the warming-oven, G. K represents a plate with two boiler-holes in it, which can be used when the reservoir is removed or should become broken in shipment, thus converting it into a six-hole stove. It is our purpose to insert a loose-center piece between the boiler-holes in the plate, K, so that an ordinary wash-boiler can be used on said plate, if desired. The novelty of this invention consists in the portability of the reservoir base-pan, D, and in the warming-closet attachment, whereby we economize space in shipment, and whereby repairs can be made at a very small cost and by unskilled workmen, as all the attachments will be shipped separate from the body of the stove, and mounted after they reach their destination. Should the reservoir become broken in shipment or otherwise, the plate, K, can be used, thus converting it into a six-hole stove, upon which an ordinary wash-boiler can be used in case of emergency. The front bottom corner of the reservoir rests upon a strip, d, attached to the division-plate, J, which thus entirely shuts off the air-space at the bottom. By means of the base-pan flue, D, extending under the whole bottom of the reservoir, F, and the space between the reservoir and the division-plate, J, the reservoir becomes heated only on its bottom surface, where there will always be water, if any in the reservoir at all. The exit-flue, E, passes up through and forms part of the reservoir, F, at the back or rear side, as shown. We do not claim, under this specification, the combination of the reservoir with the back of the stove when an air-space open at the top is left between the two, as seen in the drawings, nor do we claim the sheet-flue under the reservoir in the shell, D, as both of these arrangements are the subject-matter of a separate application for a patent, now pending.'

The claims of No. 142,934 are three in unmber, as follows, and the infringement of all them is admitted: '(1) The detachable base-pan or flue-shell, D, attached to the body at a point near the center of the back plate of the stove, by means of hooks, a, a, cast on the base-pan, and pins, b, b, on the stove-body, substantially for the purposes herein set forth. (2) The portable reservoir, F, with flue, E, in the rear side, in combination with the portable base-pan or flue-shell, D, substantially as and for the purposes herein set forth. (3) The combination, with a three-flue stove having damper, H, arranged as deseribed, of the portable base-pan or flue shell, D, and warming-closet, G, all substantially as and for the purposes herein set forth.'

The Tiffany patent of 1869 shows a low-down reservoir at the rear of a three-flue stove, and a warming-closet below the reservoir. The gases pass from the flue-space into a base-pan or chamber which is immediately below the reservoir, and forms the top of the warming-closet. The flue by which the gases escape from the base-pan is in the rear of the reservoir and is removable with it. The Tiffany stove, having three flues, must have a damper to open and close the middle flue. The specification of the Tiffany patent states that the reservoir and the warming-closet are capable of being attached to and detached from the stove, so that the stove is complete without them, and they are complete without being attached; and it also states that they may be attached to the stove by lugs or hooks, either cast in the back of the stove, with a corresponding eye in the side of the case surrounding the reservoir, or in the top and side of the reservoir, or the hook and the eye may be reversed. A detachable base-pan existed before, and hearths and ash-pans existed attached by lugs and hooks in the same way as the defendant's base-pan. A portable reservoir was old, with an escape-pipe or flue forming a part of the reservoir. A damper for the middle flue was old. A warming-closet below a base-pan and that below a reservoir were old. In view of the state of the art there was no invention, in claim 1 of the patent, in using to attach the base-pan an old mode used in attaching other projecting parts of the stove. Claim 2 is merely for an aggregation of parts and not for a patentable combination, there being no patentable relation between a portable reservoir with a flue in its rear side and the existence or portability of a base-pan beneath it. In claim 3 there is merely an aggregration of parts, there being no patentable relation between a damper for the middle flue of a three-flue stove, and the existence or portability of a base-pan or the existence of a warming-closet. closet.

The decree of the circuit court is reversed, with costs in this court to the Excelsior Manufacturing Company on both appeals, and the case is remanded to the circuit court, with direction to dismiss the bill, with costs.


text: Talk:Bussey v. Excelsior Manufacturing Company/Opinion of the Court


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United States v. Lawton (110 U.S. 146)

The appellee recovered a judgment in the court of claims against the United States for $929.50. That court found the following facts: In 1827 James Stoney, of South Carolina, died, leaving a will, which was duly proved, and contained the following provision:

'The other equal part or share of my personal property,     charged and chargeable with the payment of half of the said      annuity to my beloved wife, Elizabeth, together with all the      lands I possess on the south side of Broad creek, on the      island of Hilton Head, I give and devise unto such person or      persons as I shall hereafter appoint my executor or      executors, to and to the use of them or him, my executor or      executors, their heirs, executors, and assigns, upon the      trust nevertheless, and to and for the intent and purpose      hereinafter expressed and declared of and concerning the      same; that is to say, upon trust for the sole benefit of my      beloved daughter, Martha S. Barksdale, for and during her      natural life, free from the debts, contracts, and engagements      of any husband to whom she may be allied, or the claims of      his creditors; and upon the death of my said daughter, Martha      S. Barksdale, it is my will, in tention, and desire that the      trusteeship above created in my executor or executors over      the said part of my real estate and personal property shall      immediately dissolve and expire; and if my said daughter,      Martha S. Barksdale, shall have any lawful issue living at      the time of her death, then I give and devise the said part      of my real and personal property to such issue, him, her, or      them, and their heirs foreover.'

A tract of land known as the Hill Place, in St. Luke's parish, South Carolina, was a part of the estate so devised. Martha S. Barksdale, named in the will, entered into possession of the Hill Place, under the devise, and continued in possession until dispossessed, in consequence of the tax sale hereinafter mentioned. After the making of the will she became the lawful wife of Joseph A. Lawton. The appellee is her lawful and only living issue. In November, 1862, the direct tax commissioners of the United States assessed a direct tax on the Hill Place, amounting to $88, and in December, 1873, (a mistake, probably, for 1863,) it was sold for non-payment of the tax. The amount of the tax, penalty, interest, and costs, was $170.50. The property was 'struck off for the United States by the tax commissioners,' for the sum of $1,100, and a tax certificate, which is now on file in the office of the commissioner of interna revenue, was issued therefor, but no money was paid, 'the tax commissioners having bid in the property for the United States.' The board of tax commissioners took possession of the land in the name of the United States, and from time to time leased the same. The amount realized from the leasing does not appear. The United States are still in possession of 50 acres. The remainder was sold at public sale in December, 1875, for $130, under the provisions of the act of June 8, 1872, c. 337, (17 St. 330.) No application under that act and the acts supplementary thereto, for redemption of the property, was ever made. It does not appear that the appellee ever parted with his interest in the remainder of the tract, except as dispossessed by the tax sale, or that he ever assigned his right to receive the surplus remaining from the purchase money. Mrs. Lawton died in April, 1880. It does not appear that during her life-time any demand was made upon the treasury for the surplus. In May, 1882, the appellee applied to the secretary of treasury for any surplus proceeds of the sale which might be in the treasury. No action was taken thereon, and nothing has been paid to the appellee on such application.

''Sol. Gen. Phillips and John S. Blair'', for appellant.

''Wm. E. Earle and J. J. Darlington'', for appellee.

BLATCHFORD, J.

title: United States v. Lawton (110 U.S. 146)


text: Talk:United States v. Lawton (110 U.S. 146)


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United States v. Lawton (110 U.S. 146)/Opinion of the Court

We think that this case is governed by the rulings of this court in U.S. v. Taylor, 104 U.S. 216. In that case the land sold for the non-payment of the tax was sold to a person who paid the purchase money to the United States, and the surplus proceeds were in the treasury. It was held that the provision of section 36 of the act of August 5, 1861, c. 46, (12 St. 292,) in regard to the surplus of the proceeds of sale, was not repealed by anything in section 12 or any other section of act of June 7, 1862, c. 98, (12 St. 422.) It was also held that the court of claims had jurisdiction of a suit for such proceeds when the application to the secretary of the treasury and the bringing of the suit therefor, both of them, occurred more than six years after the sale for the non-payment of the tax.

The present case differs from the Taylor Case only in this, that the land was in this case bought in by the tax commissioners for the United States, and no money was paid on the sale. It was so bought in for a sum which exceeded by $929.50 the tax, penalty, interest, and costs. This was done under the authority of section 7 of the act of June 7, 1862, as amended by the act of February 6, 1863, c. 21, (12 St. 640,) which authorized the commissioners to bid off for the United States land sold for the tax, at a sum not exceeding two-thirds of its assessed value, unless some person should bid a higher sum, and also provided that at a sale any land which might be selected, under the direction of the president, for government use, might be bid in by the commissioners, under the direction of the president, for and struck off to the United States. The land in the present case having been 'struck off for' and 'bid in' for the United States at the sum of $1,100, we are of opinion that the surplus of that sum, beyond the $170.50 tax, penalty, interest, and costs, must be regarded as being in the treasury of the United States, under the provisions of section 36 of the act of 1861, for the use of the owner, in like manner as if it were the surplus of purchase money received by the United States from a third person on a sale of the land to such person for the non-payment of the tax. It was unnecessary to go through any form of paying money out of the treasury to any officer and then paying it in again to be held for the owner of the land. But, so far as such owner is concerned, the surplus money is set aside as his as fully as if it had come from a third person. If a third person had bid $1,099 in this case, there would have been a surplus of $928.50 paid into the treasury and held for the owner. It can make no difference that the United States acquired the property by bidding one dollar more. To withhold the surplus from the owner would be to violate the fifth amendmen to the constitution, and deprive him of his property without due process of law or take his property for public use without just compensation. If he affirms the propriety of selling or taking more than enough of his land to pay the tax and penalty and interest and costs, and applies for the surplus money, he must receive at least that.

The appellants rely very much on the provisions of section 12 of the act of 1862, which require that one-half of the proceeds of subsequent leases and sales of land struck off to the United States at a sale for the non-payment of the tax, shall be, under certain circumstances, paid to the state in which the land lies; and contend that those provisions apply to the land in this case bought in under the act of 1863. The view urged is that if the United States pays to the appellee the $929.50, and to the state one-half of the proceeds of subsequent leases and sales of the land, they will pay out more than the surplus of the proceeds of the original sale. It is not necessary to determine whether section 12 of the act of 1862 applies to the land in this case, even if it would be proper to do so in a case where the state in not represented, as a claimant to the proceeds of leases and sales. No question as to the disposition of such proceeds can properly affect the right of the appellee to this surplus money. His claim is to the surplus money arising on the original sale and not to any proceeds of any dealing with the land by the United States afterwards.

The application made to the secretary of the treasury for the surplus not having been complied with, the appellee was entitled to bring this suit, as on an implied contract to pay over the surplus. It not having been paid to the trustees under the will, or to the life-tenant, the appellee, as remainder-man, is clearly entitled to it.

The judgment of the court of claims is affirmed.


text: Talk:United States v. Lawton (110 U.S. 146)/Opinion of the Court


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Hart v. Sansom

Henry J. Leovy and W. Hallett Phillips, for plaintiff in error.

A. S. Lathrop, for defendants in error.

GRAY, J.

title: Hart v. Sansom


text: Talk:Hart v. Sansom

title: Talk:Hart v. Sansom


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Hart v. Sansom/Opinion of the Court

This is a writ of error sued out by Edmond J. Hart, a citizen of Lo isiana, to reverse a judgment rendered against him in the circuit court of the United States for the Northern district of Texas, in an action brought by him against Marion Sansom and the heirs at law of Thomas M. League, citizens of Texas, to recover a tract of land in Johnson county, in that state, of which they had dispossessed him. At the trial, Hart proved his title under a patent from the republic of Texas to League, and a deed with general covenants of warranty from League, dated August 19, 1846, and both recorded on December 9, 1879, and it appeared that the defendant Sansom held possession of the land under a lease from the other defendants and as their tenant. The defendants offered in evidence the record of a judgment rendered by the district court of Johnson county, on August 24, 1875, upon a petition filed June 11, 1873, by the heirs at law of League, (who died intestate November 5, 1865,) against Virgil Wilkerson, Orlando Dorsey, and several other persons, and Hart, alleging that Wilkerson ejected the plaintiffs from this land, and unlawfully withheld possession thereof from them; that on October 29, 1870, the defendant Dorsey, by deed duly recorded, conveyed to some of the other defendants than Wilkerson and Hart three-fourths of the land, reserving in that deed the remaining fourth to himself, and that other deeds (particularly set forth) of parts of the land were afterwards made to the rest of such other defendants and recorded; that the defendant Hart 'sets up some pretended claim and title to said land;' and that 'the defendant Wilkerson is a naked trespasser upon the land of the plaintiffs, and that the several other defendants' several deeds, which appear upon the record of deeds of Johnson county as aforesaid, are fraudulent and void, and that the said pretended claims and deeds, and each and all of them, cast a cloud upon the title of the plaintiffs;' and praying 'that they have judgment that the cloud upon the title of the plaintiffs, created by the several deeds aforesaid, be removed, and that the said deeds, and each and all of them, be declared null and void, and be canceled and discharged of record, and that the title of the plaintiffs in and to said premises and every part thereof, may by confirmed and established as against said defendants and each and every of them, and all persons claiming through or under them,' and for a writ of possession, damages, and costs. That record also showed the issue and due service of citations to all the defendants except Dorsey and Hart; the issue of a citation directing the sheriff to serve Hart, being a citizen of Louisiana, by publication, and the sheriff's return showing the execution of the citation by such publication in a newspaper of the county four successive weeks before the return day, and a like service by publication on Dorsey, a citizen of New York. That record further showed a default of all the defendants; and that upon a writ of inquiry the jury assessed damages against Dorsey and Hart; found as facts the issue of the patent to League and the title of the plaintiffs as his heirs; that Hart 'claimed said land;' and that a deed was made by Dorsey and recorded, as alleged in the petition, but that Hart and Dorsey respectively had no title of record or otherwise; and returned a verdict 'for the plaintiffs; and that they recover the land described in the petition.' That record finally showed a judgment 'that the plaintiff's recover of the defendants the premises described,' and 'that the several deeds in the plaintiff's petition mentioned be and the same are hereby annulled and canceled, and for naught held, and the cloud thereby removed,' and for costs, and that execution issue for the costs. The circuit court, against the plaintiff's objection, admitted the judgment in evidence, instructed the jury that it divested the plaintiff of his title to the land, and directed a verdict for the defendants.

The plaintiff, deriving his title under a deed with covenants of general warran y from League, is entitled to maintain this action against League's heirs, who are estopped by those covenants, unless the former judgment in the action brought by them in the state court has adjudicated the title as between them and the present plaintiff. It is therefore necessary to consider the nature and effect of that judgment. The petition combined, in accordance with the practice prevailing in that state, an action in the nature of ejectment to recover possession of the land, and a suit in equity to remove a cloud upon the plaintiffs' title; and the service by publication was in the form authorized by the local statutes against non-residents. 1 Pasch. Dig. Laws Tex. (4th Ed.) art. 25. The petition alleges that Wilkerson was in possession; and that the other defendants, except Hart, held recorded deeds, which were fraudulent and void, and cast a cloud upon the plaintiffs' title. But as to Hart, it did not allege that he was in possession, or was in privity with the other defendants, or that he held any deed, but only that he set up some pretended claim and title. And the verdict finds that he claimed the land, but had no title of record or otherwise therein. The judgment is that the plaintiffs recover the land of the defendants, and that the deeds mentioned in the petition be and are annulled and canceled, and the cloud thereby removed, and for costs; and execution is awarded for costs only, and not for any writ or process in the nature of a writ of possession or habere facias.

It is difficult to see how any part of that judgment (except for costs) is applicable to Hart; for that part which is for recovery of possession certainly cannot apply to Hart, who was not in possession; and that part which removes the cloud upon the plaintiff's title appears to be limited to the cloud created by the deeds mentioned in the petition; and the petition does not allege, the verdict negatives, that Hart held any deed. But if there is any judgment (except for costs) against Hart, it is, upon the most liberal construction, only a decree removing the cloud created by his pretended claim of title, and is no bar to the present action. Generally, if not universally, equity jurisdiction is exercised in personam, and not in rem, and depends upon the control of the court over the parties, by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought. Upon a bill for the removal of a cloud upon title, as upon a bill for the specific performance of an agreement to convey, the decree, unless otherwise expressly provided by statute, is clearly not a judgment in rem, establishing a title in land, but operates in personam only, by restraining the defendant from asserting his claim, and directing him to deliver up his deed to be canceled, or to execute a relief to the plaintiff. Langd. Eq. Pl. (2d Ed.) §§ 43, 184; Massie v. Watts, 6 Cranch, 148; Orton v. Smith, 18 How. 263; Vandever v. Freeman, 20 Tex. 334. It would doubtless be within the power of the state in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose. Felch v. Hooper, 119 Mass. 52; Ager v. Murray, 105 U.S. 126, 132. But in such a case, as in the ordinary exercise of its jurisdiction, a court of equity acts in personam, by compelling a deed to be executed or canceled by or in behalf of the party. It has no inherent power, by the mere force of its decree, to annul a deed or to establish a title.

In the judgment in question, no trustee to act in behalf of the defendant was appointed by the court, nor have we been referred to any statute authorizing such an appointment to be made. The utmost effect which can be attributed to the judgment, as against Hart, is that of an ordinary decree for the removal by him, as well a by the other defendants, of a cloud upon the plaintiff's title. Such a decree, being in personam merely, can only be supported against a person who is not a citizen or resident of the state in which it is rendered, by actual service upon him within its jurisdiction; and constructive service by publication in a newspaper is not sufficient. The courts of the state might perhaps feel bound to give effect to the service made as directed by its statutes. But no court deriving its authority from another government will recognize a merely constructive service as bringing the person within the jurisdiction of the court. The judgment would be allowed no force in the courts of any other state; and it is of no greater force, as against a citizen of another state, in a court of the United States, though held within the state in which the judgment was rendered. Hollingsworth v. Barbour, 4 Pet. 466, 475; Boswell's Lessee v. Otis, 9 How. 336; Bischoff v. Wethered, 9 Wall. 812; Knowles v. Gas-light Co. 19 Wall. 58; Pennoyer v. Neff, 95 U.S. 714. See, also, Schibsby v. Westenholz, L. R. 6 Q. B. 155; The City of Mecca, 6 Prob. Div. 106.

The circuit court having ruled and instructed the jury otherwise, its judgment must be reversed, and the cause remanded with directions to set aside the verdict, and to order a new trial.

title: Hart v. Sansom/Opinion of the Court


text: Talk:Hart v. Sansom/Opinion of the Court


text:
United States v. Company Commissioners County of Dodge

W. H. Munger, Lewis A. Groff, and C. S. Montgomery, for plaintiff in error.

''Wm. Marshall'', for defendants in error.

GRAY, J.


text: Talk:United States v. Company Commissioners County of Dodge