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United States v. Gillis/Opinion of the Court

The plaintiff seeks to recover in this action the proceeds of the sale of one hundred and eight bales of cotton, which, in March, 1865, were the property of John H. Ryan, of Charleston, S.C.. During that month the cotton was there taken by the military officers of the United States, as directed by the Captured and Abandoned Property Act, transported to New York and sold, and the net proceeds of the sale have been covered into the treasury. The plaintiff, as administratrix of Thomas H. Gillis, now asserts a right to recover the proceeds by virtue of an alleged assignment of the claim made by Ryan, the former owner of the cotton, to her intestate.

It is obvious that, if no such assignment was made, or if, when made, it was inoperative to transmit the legal right to the claim, the suit cannot be maintained in the name of the plaintiff. Then there is no privity between her and the United States, and she is not the 'owner,' who alone is permitted to sue in the Court of Claims. That court found as facts that some time in October or November, 1866, Ryan transferred the legal title to his claim against the United States for the proceeds of the cotton to the plaintiff's intestate, and assented to the bringing this action thereon in the name of Gillis. The transfer was made through one Van Ness, under a power of attorney from Ryan, and a contract, the full terms of which have not been proved, though the transfer was subsequently assented to and confirmed by Ryan. Subsequently a controversy arose between the present claimant and the administrator of Ryan, who had deceased, respecting an equitable interest claimed by said administrator in some portion of the money which might be recovered, and since the present action was brought a compromise has been made by which it is agreed that a part of the amount recovered shall be paid to the said administrator by the claimant's attorneys of record. Such, in substance, are the findings, so far as they relate to the transfer of the claim by Ryan to the claimant's intestate. What the Court of Claims intended by finding that the legal title to the claim for the proceeds of the cotton was transferred to Gillis is not clear. And how that could be found, when the alleged transfer was under a power of attorney and contract, the full terms of which, the court finds, had not been fully proved, it is equally hard to understand. It seems probable all that the finding means is that Ryan's power of attorney and contract sought to empower Gillis to bring suit in the latter's name for the recovery from the United States of the net proceeds of sale of the cotton then in the treasury, and to retain the whole o a part of what might be recovered. However this may be, a transfer of the claim, sufficient to vest in the transferee the legal ownership thereof and give him a standing in the Court of Claims, was impossible, unless aided by some statute. At best, the claim, before its attempted transfer, was a mere right in action and a demand for an unliquidated sum of money. This is true whether the avails of the cotton sold are to be regarded as money had and received for the use of Ryan, or as held in trust for him, or promised to him by the provisions of the Captured and Abandoned Property Act. But choses in action, which are not commercial instruments, though assignable in equity in some cases, are not generally assignable at common law. And certainly the holder of a mere equitable right can have no standing as a plaintiff in the Court of Claims. Apart from the fact that there is no privity between the United States and an equitable holder of a claim against the government, obtained by him through an assignment, the Court of Claims is without power to adjudicate upon merely equitable rights. Bonner v. United States, 9 Wall. 156.

If, therefore, Ryan's assignment to Gillis operated as a transfer of the legal ownership of his claim against the United States, so as to enable the assignee to sue in his own right in the Court of Claims, it must be because there is some statute that has changed the rule of the common law, and given to an assignment the effect which, prior to the statute, it did not have. In United States v. Robeson, 9 Pet. 319, decided in 1835, it was said by this court: 'There is no law of Congress which authorizes the assignment of claims against the United States, and it is presumed, if such an assignment is sanctioned by the Treasury Department, it is only viewed as an authority to receive the money, and not as vesting in the assignee a legal right. But whatever may be the usage of the Treasury Department on this subject, it is clear that such an assignment, as between individuals, on common-law principles, cannot be regarded as transferring to the assignee a right to bring an action at law on the account in his own name, or to plead it by way of set-off to an action brought against him, either by an individual or the government.' No act of Congress since 1835 has given negotiability to claims against the government, or given new effect to attempted transfers. On the contrary, an act, approved Feb. 26, 1853, entitled 'An Act to prevent frauds upon the treasury of the United States,' 10 Stat. 170, sect. 1, enacted 'that all transfers and assignments' thereafter 'made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.' The seventh section enacts that 'the provisions of this act,' as also those of the prior act of July 29, 1846, entitled 'An Act in relation to the payment of claims,' 'shall apply and extend to all claims against the United States, whether allowed by special acts of Congress or arising under general laws or treaties, or in any other manner whatever.' No language could be broader or more emphatic than these enactments. The words embrace every claim against the United States, however arising, of whatever nature it may be, and wherever and whenever presented.

So far are they from giving new potency to assignments and transfers of rights in action, so far from changing the common-law rule that such rights are not assignable, the statute strikes down and denies any effect to powers of attorney, orders, transfers, and assignments which before were good in equity, and which a debtor was bound to regard when brought to his notice.

It has been argued on behalf of the claimant in this case that this act, the act of 1853, is applicable only to claims asserted before the Treasury Department. This is inferred from the title of the act, and from the fact that at the time when it was passed there was no Court of Claims in existence, and claims were settled in the Treasury Department, without opportunity to cross-examine witnesses. The frauds made possible by this mode of settlement, it is said, Congress had solely in view. But it is an unwarrantable assumption to assert that Congress had in mind only claims presented to the Treasury Department. When the act was passed, many claims were presented to Congress, and a vast number were set up by way of defalcation, in suits brought by the government, where there was a full opportunity to cross-examine the witnesses called in their support. That Congress had all such claims in view, and intended to prevent their assignment, and debar any assignee from setting them up, is, we think, altogether probable. If it be said the danger the act sought to provide a guard against was that fraudulent assignments of just claims might be imposed upon the accounting officers, so that the government, after one payment to a pretended assignee, might find itself confronted by the real creditor and be called upon to pay again, the answer is that the same danger would attend the payment or allowance to an assignee, after a trial in court, or after a private act passed by Congress. We discover nothing in reason, nothing in the mischief the act was plainly intended to remedy, and nothing in the language employed tending to warrant the admission of any exceptions from the comprehensive provisions made; nothing that can justify our holding that, when Congress said all transfers or assignments, partial or entire, absolute or conditional, of claims against the United States shall be null and void, they meant they should be in operation only when presented to the accounting officers of the treasury, but effective when presented everywhere else. Such was not the construction given to the act by the Supreme Court of Minnesota in the case of Becker v. Sweetzer, 15 Minn. 427, where the validity of an assignment of such a claim came in question. And we are not informed that any court held such to be the meaning of the act, until the Court of Claims, in 1872, adopted it. Lawrence's Case and Cavender's Case, 8 Ct. of Cl. 252 and 281. Even in that court its earlier decisions were different. In Sine's Case, 1 id. 12, in Cooper's Case, id. 87, and in the Cote Case, 3 id. 64-71, it was decided that all transfers and assignments of claims against the United States were made void by the statute, not only when the assignees set up the claims in the Treasury Department, but also when they attempted to sue in the Court of Claims, and very convincing reasons were given for the decision. It was said with great force, 'The act operates directly on the claims themselves, and not as limitations on or definitions of the powers of those who are to adjust them or adjudicate upon them.' And it might have been added, the act makes no reference to the accounting officers. The departure from this ruling made in the two cases reported in the eighth volume of Court of Claims reports seems to have been made with a view to reconcile, if possible, the enactment with some expressions made in the subsequent act of 1855 establishing the Court of Claims. But the latter is not an enabling act. It gives to the court jurisdiction of all claims of a specified description, and only incidentally speaks of assignments. It requires the petition to set out all assignments of the claim, or any part thereof. It requires the record to show the allegiance of the claimant, and the original and every prior owner thereof, where the claim has been assigned. It must be admitted the act contemplates the possibility of an effective assignment of some claims. What those ar, it is not necessary now to determine. Even the act of 1853 excepted from its sweeping provisions certain claims, which were liquidated, and for which warrants are drawn. It is enough, however, that a later statute, not declaratory in its character, cannot be relied upon for the purpose of giving a construction to a former act plain in its terms. Ingalls v. Cole, 47 Me. 530.

That the act creating the Court of Claims did not work a repeal of any provisions of the act of 1853, nor itself make claims assignable that were incapable of assignment before its enactment, is beyond reasonable doubt. It certainly contains no words expressly repealing any former statute, either in whole or in part. And there is no necessary implication of intentional repeal. Implied repeals are not favored. 2 Dwarris on Statutes, 638, 673. The rule is that an ancient statute will be impliedly repealed by a later one only when the later is couched in negative terms, or when the matter is so clearly repugnant that it necessarily implies a negative. Where both acts are affirmative, and the substance such that both may stand together, both are held to be in force. Foster's Case, 11 Rep. 57. Now, the act of 1855 does not declare that any claim against the United States shall be assignable. At most, it suggests that claims which are assignable may be sued in the Court of Claims in the name of the assignee, without undertaking to declare what claims may be assigned. That there may be such claims is clearly stated in the act of 1853, and there are devolutions of title by force of law, without any act of parties, or involuntary assignments, compelled by law, which may have been in view. There is, therefore, no necessary inconsistency between the two acts. Besides, they relate to different subjects, and it may be doubted whether a statute relating to one subject can be construed to repeal by implication a prior statute relating entirely to another subject.

We think, therefore, the act of 1853 is of universal application, and covers all claims against the United States in every tribunal in which they may be asserted. And such, we think, was the understanding of Congress when the Revised Statutes were enacted. In the revision, the act of 1853 was included and re-enacted. Sect. 3477. In 1873 and 1874, therefore, it was not thought that the act establishing the Court of Claims had repealed any of the provisions of the act of 1853; for, if it had been, the repealed parts would not have been included in the revision. The Revised Statutes were passed June 22, 1874. The decisions of the Court of Claims, that the act of 1853 did apply to claims made in that court, had been made years before, and reported, and they may be presumed to have been within the knowledge of Congress. The later decisions in Lawrence's Case and Cavender's Case were not reported until 1874, and were probably not known, or not as well known. By re-enacting the statute of 1853, without change, it is a reasonable presumption Congress intended what it was known the court had adopted as its true construction.

If we are right in the opinion we have expressed, that claims against the United States cannot be assigned so as to enable the assignee to bring suit in his own name in the Court of Claims, it is enough for the present case. But there is another reason why claims for the proceeds of captured and abandoned property cannot be assigned so as to give the assignee a standing in that court. It is found in the act giving the court jurisdiction of such claims. Not every person is permitted to sue for such proceeds. The act declares that 'any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of the court of his ownership of said property, & c., receive the residue of such proceeds. It is thus plain that only he who can claim as an owner of the property captured or abandoned, and who can prove such ownership, is permitted to sue and recover. The assignee of a claim for the proceeds is not such an owner of the property captured. That the ownership claimed and required to be proved is that which existed at the time of the capture, is quite plain. Carroll v. United States, 13 Wall. 151. The owner of that into which the property has been converted is not necessarily the one who was the owner of the property itself. It is thus evident that Congress did not intend to give any assignee of the proceeds a right to sue for them. And there were very substantial reasons for withholding such a privilege.

Judgment reversed, and the record remitted with instructions to dismiss the claimant's petition.

MR. JUSTICE BRADLEY delivered the following opinion, in which MR. JUSTICE FIELD concurred.

I dissent from so much of the opinion in this case as holds that an assignment of a claim against the United States could not transfer the legal title thereto without the aid of some statute. I know of nothing in the Constitution or laws of the United States which adopts the common-law rule on this subject. There is no such rule in the civil law, nor in the laws of many of the States. So far as the opinion places the judgment upon the statute of 1853, which prohibits the assignment of claims against the United States, I concur in it.


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

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Turnbull v. Payson

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

The facts are stated in the opinion of the court.

Mr. Edward Otis Hinckley for the plaintiff in error.

Mr. D. K. Tenney, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Turnbull v. Payson


text: Talk:Turnbull v. Payson

title: Talk:Turnbull v. Payson


text:
Turnbull v. Payson/Opinion of the Court

Stockholders in the bankrupt company were made liable by the act of incorporation 'in all cases of losses exceeding the means of the corporation,' each to the amount of the stock which he held; and the record shows that the defendant, at the time of the alleged loss, held fifty shares of the stock, eighty per cent of which was unpaid.

Sufficient also appears to show that the insurance company, on the 9th of October, 1871, met with losses by fire which exhausted all their funds and effects; and that the corporation, on the 14th of November of the next year, was duly adjudged bankrupt by the District Court for the Northern District of Illinois, the insurance company having its principal place of business at Chicago, in that district.

Due notice was given of the adjudication; and the creditors, at their first meeting, chose the plaintiff below the assignee of the estate and effects of the bankrupt company. No opposing interest appearing, the register, by an instrument under his hand, assigned and conveyed to the assignee all the estate, real and personal, of the bankrupt company.

Regular proceedings followed; and the bankrupt court, on the 4th of February, 1873, entered a decree that a call or assessment of sixty per cent upon the stock of the stockholders was necessary for the purpose of raising funds to pay losses incurred by the bankrupt company in its insurance business, and ordered and directed the assignee to proceed to make the assessment.

Pursuant to that decree, the assignee made the assessment, and filed in the bankrupt court due proof that he had given the notices prescribed in the decree. Payment being refused by the defendant, the plaintiff instituted the present suit in the District Court for the District of Maryland, to recover the amount of the assessment on the fifty shares held by the defendant. Service was made, and the defendant appeared and pleaded that he never promised. Other proceedings took place, which it is not necessary to notice; and at the next term the parties went to trial, and the verdict and judgment were in favor of the plaintiff. Exceptions were duly taken by the defendant; and he sued out a writ of error, and removed the cause into the Circuit Court, where the parties ere again heard, and the Circuit Court affirmed the decree of the District Court.

Cases of the kind may be re-examined here as well as in the Circuit Court upon the bill of exceptions filed in the District Court; and the defendant accordingly sued out a writ of error, and removed the cause here for re-examination.

Nine bills of exception are set forth in the transcript, covering forty-eight pages of the same, all of which were allowed in the District Court. Bills of exceptions are required, in order that the matters to which they relate may be made a part of the record, and that it may appear that the questions involved were raised in the subordinate court. Such a proceeding constitutes a proper foundation for a writ of error, but it does not remove the cause into the appellate court without a writ of error; and, whenever a cause is removed into this court, the requirement is that there shall be an assignment of errors, setting 'out separately and specifically each error asserted and intended to be urged,' and 'when the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be the instruction given or instruction refused.' Argument to show that the assignment of errors in this cause is not a compliance with that rule is unnecessary, as it is obvious that it is materially defective both in form and substance.

Three errors are set forth in a single assignment: 1. That the court erred by admitting in evidence the several matters set forth in exceptions Nos. 1 to 8. 2. That the court erred in rejecting the prayers for instruction presented by the plaintiff, Nos. 1 to 9. 3. That the court erred in the instruction given to the jury, which covered the whole case.

Assignments of error are required to be more specific and definite; but, inasmuch as the defendant has reduced the several exceptions to a summary statement, the material questions will be re-examined.

Two principal allegations were required to be proved by the plaintiff in order to maintain the action, which was assumpsit to recover the assessment made by the order of the bankrupt court: 1. That the defendant was a stockholder in the company, and that he owned fifty shares of the capital stock. 2. That the assessment had been made by the assignee, as alleged in the declaration.

During the trial, the plaintiff offered evidence to prove that the defendant was a stockholder, as follows: 1. He offered the books of the corporation, in which the name of the defendant was entered as the owner of fifty shares. 2. He offered the stock-book of the company, with a duplicate of the stock certificate issued to the defendant, showing that he was the owner of the same number of the shares of the capital stock. 3. He introduced testimony to prove that the certificate was sent to the agents of the company, to be delivered to the defendant when he paid twenty per cent of the shares; and that he made the required payment. 4. He also introduced a receipt signed by the defendant, showing that the company paid the defendant a dividend upon his stock.

Separate objection was made by the defendant to each of the offers of proof, which were admitted by the court, and the defendant excepted.

Taken as a whole, it is clear that the evidence offered was amply sufficient to warrant the jury in finding that the defendant was a stockholder, as alleged. Where the name of an individual appears on the stock-book of a corporation as a stockholder, the prima facie presumption is that he is the owner of the stock, in a case where there is nothing to rebut that presumption; and, in an action against him as a stockholder, the burden of proving that he is not a stockholder, or of rebutting that presumption, is cast upon the defendant. Hoagland v. Bell, 36 Barb. (N. Y.) 57; Plank Road v. Rice, 7 id. 162; Turnpike Road v. Van Ness, 2 Cranch, C. C. 451; Mudgett v. Horrell, 33 Cal. 25; Coffin v. Collins, 17 Me. 440; Merrill v. Walker, 24 id. 237.

Specific objection was also made to the admissibility of the act of incorporation of the company, on account of a verbal variance between the name of the company as given in the act from that set forth in the declaration; but the objection is without merit, as it presents no obstacle to a right understanding of the matter. Dodge v. Barnes, 31 Me. 290; Chadsey v. McCreery, 27 Ill. 253; ''Ken. Seminary v. Wallace'', 15 B. Mon. (Ky.) 35.

Satisfactory proof having been exhibited that the company was duly incorporated and organized, it follows that the receipt of a dividend upon the shares standing upon the book of the company in the name of the defendant, when taken in connection with the other evidence introduced by the plaintiff, is conclusive to show that the assignment of error in that regard should be overruled. Upton v. Hansbrough, 10 N. B. R. 369; In re Bank, 12 N. Y. 17; Alder v. Bank, 13 Wis. 61; Ward v. ''Manuf. Co.'', 16 Conn. 593.

Suppose that is so, still it is insisted by the defendant that the court below erred in admitting the record of the bankrupt proceedings in the bankrupt court for the northern district of Illinois. Several objections were taken to the admissibility of that record, the principal one of which was that the copy of the record was not properly authenticated.

Proceedings in bankruptcy are deemed to be matters of record, but they are not required to be recorded at large. Instead of that, the requirement is that they shall be filed, kept, and numbered in the office of the clerk of the court, a short memorandum thereof being kept in books provided for the purpose; and the express provision of the act of Congress is that 'copies of such records, duly certified under the seal of the court, shall in all cases be prima facie evidence of the facts therein stated.' 14 Stat. 535; Rev. Stat., sect. 4992.

Records and the judicial proceedings of the courts of any State, the act of Congress provides, shall be proved or admitted in evidence in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. 1 Stat. 122; Mills v. Duryee, 7 Cranch, 481; Christmas v. Russell, 5 Wall. 290.

Both the Constitution and the act of Congress and limited in terms to the records and judicial proceedings of the State courts. Much discussion of that proposition is unnecessary, as it has long since been established by judicial decisions of high authority. Adams v. May, 33 Conn. 419; Conk. Treat. (5th ed.) 393; Pepoon v. Jenkins, 2 Johns. (N. Y.) Cas. 119; Williams v. Wikes, 14 Pa. St. 228.

Beyond all doubt, the certificate of the clerk and the seal of the court is a sufficient authentication of the record of a judgment rendered in a State court, when offered in evidence in the Circuit Court sitting within the same State where the judgment was rendered. Mewster v. Spalding, 6 McLean, 24. Held, also, that such an authentication would be sufficient in the State court; and, if so, that it would also be good in the Circuit Court.

Art. 4, sect. 1, of the Constitution provides that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and that Congress may, by general laws, prescribe the manner in which such records shall be proved, and the effect thereof. Congress has exercised that power, and provided in effect that they shall be authenticated by the attestation of the clerk under the seal of the court, with the certificate of the judge that the attestation is in due form. Bissell v. Briggs, 9 Mass. 461; Bank of the United States v. Merchants' Bank of Baltimore, 7 Gill (Md.), 415.

Records of State courts, in order that they may be admissible in the courts of other States, ust be authenticated as required in that provision; but the act of Congress does not apply to the courts of the United States, nor to the public acts, records, or judicial proceedings of a State court to be used as evidence in another court of the same State. Conclusive support to that proposition is found in many decided cases in addition to those to which reference has already been made. Jenkins v. Kinsley, 3 Johns. (N. Y.) Cas. 474; Adams v. Lesher, 3 Blackf. (Ind.) 241; Murray v. Marsh, 2 Hayw. (N. C.) 290.

Circuit and district courts of the United States certainly cannot be considered as foreign in any sense of the term, either in respect to the State courts in which they sit, or as respects the Circuit or District Court of another circuit or district. On the contrary, they are domestic tribunals, whose proceedings all other courts of the country are bound to respect, when authenticated by the certificate of the clerk under the seal of the court, the rule being that the Circuit Court of one circuit or the District Court of one district is presumed to know the seal of the Circuit or District Court of another circuit or district, in the same manner as each court within a State is presumed to know and recognize the seal of any other court within the same State. Womack v. Dearman, 7 Port. (Ala.) 513.

Attempt was made in the Supreme Court of Massachusetts to exclude the record of a conviction in the criminal court, upon the ground that it was not duly authenticated, it appearing that it was certified by the clerk under the seal of the court without the certificate of the Chief Justice; but the Supreme Court held, Shaw, C. J., giving the opinion, that the copy of the proceedings of any court of record in that State, certified to be a true copy of the record of such court by the clerk of such court, under the seal thereof, is competent evidence of the existence of such record in every other judicial tribunal in the Commonwealth. Commonwealth v. Phillips, 11 Pick. (Mass.) 30. Since that time, it has been held by that court that it is not necessary, in order to render a copy of a record of a court in that State competent evidence in another court of the State, that it should be an exemplified copy under the seal of the court, if it is duly certified by the clerk as a true copy of the record. Chamberlin v. Ball, 15 Gray (Mass.), 352; Ladd v. Blunt, 4 Mass. 402.

Three-quarters of a century ago, it was decided by the Supreme Court of New York that a record of a judgment rendered in the Circuit Court of the United States for the District of Massachusetts was admissible in evidence, it appearing that it was authenticated in the ordinary method practised in the courts of that Commonwealth; and they placed their decision upon two grounds: 1. That the record was the record of a Federal court. 2. That the act of Congress requiring exemplification did not apply in such a case. Jenkins v. Kinsley, Col. & C. (N. Y.) Cas. 136.

Viewed in the light of these authorities, to which many more might be added, we are all of the opinion with the Supreme Court of Connecticut, that it is not absolutely necessary that the record of a judgment should be authenticated in the mode prescribed by the act of Congress referred to, to render the same admissible in the courts of the United States; that the District Court of the United States, even out of the State composing the district, is to be regarded as a domestic and not a foreign court, and that the records of such a court may be proved by the certificate of the clerk under the seal of the court, without the certificate of the judge that the attestation is in due form. Adams v. Way, 33 Conn. 419; Michener v. Payson, 13 N. B. R. 50; Mason v. Lawrason, 1 Cranch, C. C. 190.

Bankruptcy proceedings are in all cases deemed matters of record, and are to be carefully filed and numbered; but they are not required to be recorded at large. Short memoranda of the same shall be made in books prov ded for the purpose, and kept in the office of the clerk; and the provision is that the books shall be open to public inspection. Copies of such records, duly certified under the seal of the court, shall in all cases be prima facie evidence of the facts therein stated. 14 Stat. 536.

Suffice it to say, that the records of the bankruptcy proceedings admitted in evidence by the court below were authenticated in exact conformity with the directions of the Bankrupt Act, and were, in the judgment of the court, properly admitted in evidence; which is all that need be said in response to the fifth exception.

Exceptions were also taken to the rulings of the court in refusing to instruct the jury as requested by the defendant, and to the instruction given to the jury; but it is not necessary to give those exceptions a separate examination, for the reasons that the material questions involved are substantially the same as those presented in the exceptions to the rulings of the court, already sufficiently considered. Even suppose the assignment of errors presents all the questions involved in the exceptions, still it is clear that there is no error in the record.

Judgment affirmed.

title: Turnbull v. Payson/Opinion of the Court


text: Talk:Turnbull v. Payson/Opinion of the Court


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New York Life Insurance Company v. Davis

ERROR to the Circuit Court of the United States for the Eastern District of Virginia.

This was an action on a policy of life insurance issued by the New York Life Insurance Company, a New York corporation, before the war, upon the life of Sloman Davis, a citizen and resident of the State of Virginia. The policy contained the usual condition, to be void if the renewal premiums were not promptly paid. They were regularly paid until the beginning of the war. The last payment was made Dec. 28, 1860. The company, previous to the war, had an agent, A. B. Garland, residing in Petersburg, Va., where the assured also resided; and premiums on this policy were paid to him in the usual way, he giving receipts therefor, signed by the president and actuary, as provided on the margin of the policy, which were usually sent to the agent about thirty days in advance of the maturity of the premium. About a year after the war broke out, the agent entered the Confederate service as a major, and remained in that service until the close of the war.

Offer of payment of the premium next due was made to the agent in December, 1861, which he declined, alleging that he had received no receipts from the company, and that the money, if he did receive it, would be confiscated by the Confederate government. A similar offer was made to him after the close of the war, which he also declined. He testified that he refused to receive any premiums, had no communication with the company during the war, and after it terminated did not resume his agency.

Sloman Davis died in September, 1867.

The plaintiff below was assignee of the policy, and claimed to recover the amount thereof, $10,000, upon the ground that he was guilty of no laches, and that at the close of the war the policy revived.

It is unnecessary to state, in detail, the proceedings at the trial. The plaintiff contended, and the judge instructed the jury, in substance, that they might infer from the evidence that the place of payment intended by the parties was at the residence of the plaintiff, and that, if the company did not furnish receipts to its agent, so that the premiums could be paid according to the terms of the policy, it was not the fault of the plaintiff; and, if he was ready and offered to pay his premium to the agent, there could be no forfeiture of the policy, if within reasonable time after the war he endeavored to pay his premiums, and the company refused to receive them. On the other hand, the defendant contended that the war put an end to the agency of Garland, and the offer to pay the premium to him was of no validity, and the failure to pay rendered the policy void. This view was rejected by the court, and a verdict was rendered for the amount of the policy, ess the amount of certain premium notes which had been given by the assured.

Judgment was rendered upon the verdict, and the company then brought the case here.

''Mr. Matt. H. Carpenter'' for the plaintiff in error.

This case falls exactly within the principles declared in New York Life Insurance Co. v. Statham et al., 93 U.S. 24, and the judgment below must be reversed. The outbreak of the war dissolved all executory contracts between citizens of one belligerent and those of the other, and put an end to all intercourse or dealings. Matthews v. McStea, 91 U.S. 7. The policy was, therefore, absolutely annulled, and no subsequent agreement between the assured and the company during the war could revive it. It follows that every agency of the company in any State declared to be in rebellion was terminated. The company could not authorize its agent to do what it was expressly forbidden to do by the President's proclamation of Aug. 16, 1861, issued in pursuance of the act of Congress of July 13 of that year.

But if the law were otherwise, there was no evidence from which the jury could find that the party to whom the renewal premium was tendered in December, 1861, was authorized by the company to act in its behalf after the commencement of the war. He refused the money, upon the ground that he had no authority to accept it.

Mr. Samuel B. Paul, contra.

Garland was duly appointed agent of the company, and acted as such. This authority was not revoked by the company after hostilities commenced. The presumption is, that the same relations continued between him and the company which had previously existed, and a payment or a tender of payment to him was as valid as if it had been made to the company. His agency was not revoked by the war. Fretz v. Storer, 22 Wall. 198.

MR. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:New York Life Insurance Company v. Davis


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New York Life Insurance Company v. Davis/Opinion of the Court

It is obvious that this case is nearly on all-fours with that of New York Life Insurance Co. v. Statham et al., 93 U.S. 24, decided by this court at the last term. As we still adhere to the views there expressed, we do not deem it necessary to reiterate them. But the questions which received special discussion on that occasion were, whether a failure to pay the stipulated premiums involved a forfeiture of the policy, although such failure was caused by the existence of the war; and what were the mutual rights of the parties consequent upon forfeiture under such circumstances. The point which is now most strenuously relied on, namely, the supposed power of the agent of a Northern company to receive premiums in a Southern State in insurrection after the war broke out, and the supposed right of a policy-holder to tender them to such agent, although involved in the case, was not specially adverted to in the opinion of the court. We propose to add some observations on this branch of the subject.

First, however, a few words with regard to the position that there was competent evidence for the jury to infer that the place of payment intended by the parties was the place of residence of the assured. This, we think, is entirely untenable. The legal effect of the policy itself was, that payment shoud be made to the company at its domicile. The indorsement on the margin, which is much relied on by the plaintiff's counsel, has no such effect as he attributes to it. It is in these words: 'All receipts for premiums paid at agencies are to be signed by the president or actuary.' This is simply a notice to the assured, that, if he shall pay his annual premium to an agent, or at an agency, he must not do so without getting a receipt signed by the president or actuary of the company. How this caution can possibly be construed into an agreement on the part of the company to make any particular agency the legal place of payment of premium it is difficult to see. The circumstances show nothing but the common case of the establishment of an agency for the mutual convenience of the parties, and do not present the slightest ground for varying the legal effect of their written contract. We think, therefore, that the charge was erroneous on this point. Of course, we do not mean to be understood as holding, that, as long as an agency is continued, a tender to the agent would not be valid and binding on the company.

But we deem it proper to consider more particularly the question of agency, and the alleged right of tendering premiums to an agent, during the war.

That war suspends all commercial intercourse between the citizens of two belligerent countries or States, except so far as may be allowed by the sovereign authority, has been so often asserted and explained in this court within the last fifteen years, that any further discussion of that proposition would be out of place. As a consequence of this fundamental proposition, it must follow that no active business can be maintained, either personally or by correspondence, or through an agent, by the citizens of one belligerent with the citizens of the other. The only exception to the rule recognized in the books, if we lay out of view contracts for ransom and other matters of absolute necessity, is that of allowing the payment of debts to an agent of an alien enemy, where such agent resides in the same State with the debtor. But this indulgence is subject to restrictions. In the first place, it must not be done with the view of transmitting the funds to the principal during the continuance of the war; though, if so transmitted without the debtor's connivance, he will not be responsible for it. Washington, J., in Conn v. Penn, Pet. C. Ct. 496; Buchanan v. Curry, 19 Johns. (N. Y.) 141. In the next place, in order to the subsistence of the agency during the war, it must have the assent of the parties thereto,-the principal and the agent. As war suspends all intercourse between them, preventing any instructions, supervision, or knowledge of what takes place, on the one part, and any report or application for advice on the other, this relation necessarily ceases on the breaking out of hostilities, even for the limited purpose before mentioned, unless continued by the mutual assent of the parties. It is not compulsory; nor can it be made so, on either side, to subserve the ends of third parties. If the agent continues to act as such, and his so acting is subsequently ratified by the principal, or if the principal's assent is evinced by any other circumstances, then third parties may safely pay money, for the use of the principal, into the agent's hands; but not otherwise. It is not enough that there was an agency prior to the war. It would be contrary to reason that a man, without his consent, should continue to be bound by the acts of one whose relations to him have undergone such a fundamental alteration as that produced by a war between the two countries to which they respectively belong; with whom he can have no correspondence, to whom he can communicate no instructions, and over whom he can exercise no control. It would be equally unreasonable that the agent should be compelled to continue in the service of one whom the law of nations declares to be his public enemy. If the agent has property of the principal in his possession or control, good faith and fidelity to his trust will require him to keep it safely during the war, and to restore it faithfully at its close. This is all. The injustice of holding a principal bound by what an agent, acting without his assent, may do in such cases, is forcibly illustrated by Mr. Justice Davis, in delivering the opinion of this court in Fretz v. Stover, 22 Wall. 198. In that case, the agent had collected in Confederate funds the amount due on a bond. Having asserted that the agent had no authority to do this, the learned Justice adds: 'If it were otherwise, then, as long as the war lasted, every Northern creditor of Southern men was at the mercy of the agent he had employed before the war commenced. And his condition was a hard one. Directed by his government to hold no intercours with his agent, and therefore unable to change instructions which were not applicable to a state of war, yet he was bound by the acts of his agent in the collection of his debts, the same as if peace prevailed. It would be a reproach to the law, if creditors, without fault of their own, could be subjected to such ruinous consequences.' These observations have a strong bearing upon the point now under consideration.

What particular circumstances will be sufficient to show the consent of one person that another shall act as his agent to receive payment of debts in an enemy's country during war, may sometimes be difficult to determine. Emerigon says, that if a foreigner is forced to depart from one country in consequence of a declaration of war with his own, he may leave a power of attorney to a friend to collect his debts, and even to sue for them. Trait e des Assurances, vol. i. 567. But though a power of attorney to collect debts, given under such circumstances, might be valid, it is generally conceded that a power of attorney cannot be given, during the existence of war, by a citizen of one of the belligerent countries resident therein, to a citizen or resident of the other; for that would be holding intercourse with the enemy, which is forbidden. Perhaps it may be assumed that an agent ante bellum, who continues to act as such during the war, in the receipt of money or property on behalf of his principal, where it is the manifest interest of the latter that he should do so, as in the collection of rents and other debts, the assent of the principal will be presumed, unless the contrary be shown; but that, where it is against his interest, or would impose upon him some new obligation or burden, his assent will not be presumed, but must be proved, either by his subsequent ratification, or in some other manner.

In some way, however it must appear, that the alleged agent assumed to act as such, and that the alleged principal consented to his so acting. It is believed that no well-considered case can be found anterior to these life-insurance cases which have arisen out of the late civil war, in which the existence or continuance of an agency, under the circumstances above referred to, have been established contrary to the assent of the alleged parties to that relation. Conn v. Penn, supra, is the leading authority on this subject in this country. The question in that case was whether the claimants of land in Pennsylvania, under contracts of purchase from the proprietaries (the Penns) before the revolutionary war, were entitled to an abatement of interest during the war; and Justice Washington held that this depended on the question whether, during the war, the proprietaries, being alien enemies, 'had in the United States a known agent, or agents, authorized to receive the purchase-money and quit-rents due to them from the complainants,' the vendees. To enable the parties to adduce proof on this point, the court allowed further evidence to be taken. The same thing was held, at the same term, in the case of Dennison et al. v. Imbrie, 3 Wash. 396, where Justice Washington says: 'We think that if the alien enemy has an agent in the United States, or if the plaintiff himself was in the United States, and either of these facts known to the debtor, interest ought not to abate.' It is obvious that, in these cases, the judge assumed that the relation of agency, if it existed, did so with the mutual consent of the parties thereto. And the same observation, it is believed, may be made with regard to all other cases on the subject, except some that have been very recently decided.

The same inference may be deduced from the cases decided in this court when the subject of payment to agents in an enemy's country has been discussed. Amongst others we may refer to the following: Ward v. Smith, 7 Wall. 447; Brown v. Hiatts, 15 id. 177; Montgomery v. United States, id. 395; Fretz v. Stover, 22 id. 198.

In some recent cases in certain of the State c urts of last resort, for whose decisions we always entertain the highest respect, a different view has been taken; but we are unable to concur therein. In our judgment, the unqualified assumption on which those decisions are based-namely, 'once an agent always an agent;' or, in other words, that an agency continues to exist notwithstanding the occurrence of war between the countries in which the principal and the agent respectively reside-is not correct, and that the continuance of the agency is subject to the qualifications which we have stated above.

Now, in the present case, except at the very commencement of the troubles, before the President's proclamation of nonintervention had been issued, and when it was yet uncertain what the differences between the two sections would amount to, there is not the slightest evidence that the company authorized Garland to act for it at all; and the latter expressly refused to do so when requested, both on the ground of having received no receipts from the company (which were his only authority for receiving payments), and of the liability of the funds to be confiscated in his hands. The war suspended his agency for all active purposes, and it could not be continued even for the collection of premiums without the defendant's consent; and this, so far as appears, was never given, either expressly or by subsequent ratification. Under these circumstances, it cannot be affirmed that the plaintiff could bind the defendant by a tender of payment to the supposed agent. However valid a payment may be, if made to an agent in time of war, where he consents to act as such, and has the assent of his principal in so acting, an offer of payment cannot have any force or effect if neither of these circumstances exist.

Waiving, therefore, the consideration of any question that may be made with regard to the validity of an insurance on the life of an alien enemy, we think that in the present case there was not the slightest foundation for the court to charge, as it did in effect, that a tender of the premium to Garland in Petersburg was a good tender, and binding on the company.

We do not mean to say, that if the defendant had continued its authority to the agent to act in the receipt of premiums during the war, and he had done so, a payment or tender to him in lawful money of the United States would not have been valid; nor that a stipulation to continue such authority in case of war, made before its occurrence, would not have been a valid stipulation; nor that a policy of life insurance on which no premiums were to be paid, though suspended during the war, might not have revived after its close. We place our decision simply on the ground that the agency of Garland was terminated by the breaking out of the war, and that, although by the consent of the parties it might have been continued for the purpose of receiving payments of premiums during the war, there is no proof that such assent was given, either by the defendant or by Garland; but that, on the contrary, the proof is positive and uncontradicted, that Garland declined to act as agent.

Judgment reversed, with directions to award a venire facias de novo.

MR. JUSTICE CLIFFORD dissented.


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Beard v. Burts

ERROR to the Supreme Court of the State of Tennessee.

Mr. A. G. Riddle for the plaintiff in error.

Mr. Robert G. Ingersoll, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Beard v. Burts


text: Talk:Beard v. Burts

title: Talk:Beard v. Burts


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Beard v. Burts/Opinion of the Court

This was a bill of review, to which a demurrer was interposed by the defendant in the Chancery Court where it was filed; and, after hearing, the bill was dismissed. The decree of the Chancellor was then reversed by the Supreme Court of the State, the demurrer was disallowed, and, without any permission given to the defendant to answer, the decree in the orginal suit, which the bill sought to have reviewed, was vacated and annulled. The court then proceeded to decree against the defendant Beard on the original cause of action, and remanded the case to the Chancery Court for an account. An account was accordingly ordered in that court, and a final decree was entered against the defendant, and subsequently affirmed by the Supreme Court. It is to this action that the present writ of error has been sued out.

We have not before us the record of the original suit, which was instituted in 1865, and in which a final decree against the plaintiff was made Nov. 27, 1868. All we can know of it is what we learn from the bill of review. From that it appears to have been a bill for an injunction against trespass and cutting wood upon the plaintiff's land, and for an account of what had already been cut. The defendant answered, admitting that he had cut one hundred and fifty-five and one-third cords of wood, and setting up in justification 'that he cut it as an authorized agent of the government of the United States, and for military purposes, and under the direction and authority of the military authorities.' In further answer, he averred 'that he was protected by the order of the Secretary of War and the commanding general of Tennessee.'

In still further answer, he pleaded that he had a right to cut wood on the land, as appeared by an order or authority from one D. V. Brown, wood agent of the United States military railroads, and directed to him, authorizing him to cut wood on said land, as follows:--

'KNOXVILLE, TENN., May 9, 1865.

'James S. Beard is hereby authorized to cut wood for the U.S. M. R. on the lands of Joseph Burts, John Lyle, Dillard Love, by order of the superintendent.

'D. V. BROWN, Wood Agent.'

To this answer no replication appears to have been filed; but evidence was submitted, and, after hearing, the Chancellor found that Beard's plea of justification under the laws of the United States, and by military authority exercised thereunder, was sustained, and that he had acted in pursuance to such military authority. The plaintiff's bill was, therefore, dismissed, and no appeal was perfected.

So much is set forth in the bill of review, in which it is also alleged that there was error in the original decree. That assigned, and the only one that requires notice, is that the pretended authority from D. V. Brown, wood agent, was void, and gave the defendant no authority to cut the wood, as there was no order from the commanding general of the department or Secretary of War authorizing the same, nor any act of Congress authorizing the trespass at the time and place when and where committed.

Such was the case as presented to the Chancellor by the demurrer to the bill, and such was the case submitted to the Supreme Court on the appeal taken from the Chancellor's decree dismissing it.

It is obvious the only important inquiry respects the validity of the authority under which the defendant had acted. It claimed to be a privilege or immunity under the laws of the United States. It was found to be authentic by the Chancellor in his original decree, and its authenticity is not denied in the bill of review. That, therefore, is not open to debate. To sustain a bill of review, there must be errors of law apparent on the face of the decree, or some new matters of fact material in themselves, and discovered after the rendition of the decree. This is the general rule in equity, and it is the rule in Tennessee, declared to be such in the present case. The facts are not open for a re-trial, unless the bill asserts that new evidence has been discovered, not obtainable before the first trial by the exercise of reasonable diligence. The conclusions of fact of the court or Chancellor are conclusive. In view of what the Chancellor found in the original case, it would seem, therefore, his conclusion, that the defendant in cutting the wood was acting under authority from the military authorities, could not be reviewed and set aside. It was a conclusion of fact deduced from evidence he had before him. But the Supreme Court, while admitting that the original decree could not be said to contain error of law u on its face, took the position that the pleadings in the original cause might be looked to; and, if the conclusions drawn from admitted facts showed error in law, a bill of review would lie. Accordingly, the court assumed that the paper signed 'D. V. Brown, wood agent,' was all the evidence from which the Chancery Court concluded that the defendant acted under the authority or warrant of the military authorities of the government provided for by the act of Congress, and held that evidence insufficient and not a justification. For this reason the decree of the Chancery Court dismissing the bill of review was reversed, and so, also, was the decree dismissing the original bill.

We think this was an error. The act of Congress of May 11, 1866, 14 Stat 46, enacted that any acts done or omitted to be done during the rebellion by any person under and by virtue of any order, written or verbal, general or special, issued by the President, or Secretary of War, or by any military officer of the United States holding the command of the department, district, or place where such acts are done or omitted, shall, for the purposes of defence, come within the purview of the act of March 3, 1863. 12 id. 756. The fourth section of the latter act made the order of the President, or under his authority, a defence in all courts to any action for acts done or omitted to be done under or by virtue of such order, or under color of any law of Congress. And the second section of the act of 1866 enacted that, when the order is in writing, it shall be sufficient to produce in evidence the original, with proof of its authenticity, or a certified copy thereof, or, if sent by telegraph, the production of the telegram purporting to emanate from such military officer shall be prima facie evidence of its authenticity, or, if the original of such order or telegram is lost, or cannot be produced, secondary evidence thereof shall be admissible, as in other cases.

Now, that the defendant's cutting the wood was under such an order, was, as we have seen, distinctly found as a fact by the Chancellor, and nothing in his decree shows that he found it on the evidence of the paper signed 'D. V. Brown, wood agent,' alone. No assumption that he did can be justified; and, if it could be, the order, we think, was prima facie sufficient. It purported to have been issued by a wood agent for military uses, namely, for the use of the military railroads; and the wood cut was received by the military authorities. It is a legitimate presumption that agents who act for and on behalf of an army in the field are acting under the authority of its commander; and it is but just to the learned court to say that it made no attempt to review the finding of the authenticity of the Brown paper. They confined their review very properly to inquiring what was the meaning of the order, and they held it no justification of the defendant because its terms were not compulsory, but only permissive. Their language was, 'There can be no pretence, upon the facts set forth in the pleadings, that any such thing as military compulsion existed in the case, for the paper only imports on its face a permission to do the act complained of;' adding, 'and even this is not license to do it emanating from any recognized military authority.' Hence, said the court, 'we conclude that there is error of law in the conclusion of the Chancellor upon the facts.'

If in saying the order or permission or license did not emanate from any recognized military authority, the court meant to be understood as itself finding a fact, the determination is a finding without evidence, and in opposition to a finding made on evidence confessedly conclusive. But probably the court did not intend to be so understood.

The real question involved, and the only one the court could consider in the case, therefore, was whether the paper was ineffective as a defence merely because it was in form permissive only. And upon this question we are unable to concur in opinion with the Supreme Court of the State. While it may be conceded that permission to do an act is not compulsion, and that the acts of March 3, 1863, and May 11, 1866, afford no protection to those acting voluntarily and for their own benefit, the pleadings show this to have been no such case. The wood was cut for the military railroads, under military authority, and it was received by the military authorities before military operations in suppression of the rebellion had ceased. The form of the order we regard as immaterial. The plain purpose of the acts of Congress was to extend protection to all persons who might act in subordination to the military authorities engaged in conducting the war. Congress purposed, we think, to confer upon them the same exemption from liability to suit which belonged to the President, the Secretary of War, and the department commanders. The orders of which the acts speak are military orders, and a large proportion of such orders, it is well known, are merely permissive in form. They necessarily leave much to the discretion of those to whom they are addressed. We cannot doubt that Congress had such orders in view, and that its action was intended to protect against civil suits those who might do acts either commanded or authorized by them.

The decree of the Supreme Court of Tennessee must, therefore, be reversed, and the record remitted with instructions to reverse the last decree of the Chancellor, and direct him to dismiss the bill of review; and it is

So ordered.

title: Beard v. Burts/Opinion of the Court


text: Talk:Beard v. Burts/Opinion of the Court


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Baltimore and Potomac Railroad Company v. Jones

ERROR to the Supreme Court of the District of Columbia.

This was an action by Jones against the Baltimore and Potomac Railroad Company, to recover damages for an injury received on the road of the company. Judgment was rendered in his favor, and the company brought the case here.

The facts are fully stated in the opinion of the court.

Mr. Enoch Totten for the plaintiff in error.

Mr. Edward C. Carrington and Mr. Campbell Carrington, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.


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Baltimore and Potomac Railroad Company v. Jones/Opinion of the Court

The defendant in error was the plaintiff in the court below. Upon the trial there, he gave evidence to the following effect: For several months prior to the 12th of November, 1872, he was in the service of the company as a day-laborer. He was one of a party of men employed in constructing and keeping in repair the roadway of the defendant. It was usual for the defendant to convey them to and from their place of work. Sometimes a car was used for this purpose; at others, only a locomotive and tender were provided. It was common, whether a car was provided or not, for some of the men to ride on the pilot or bumper in front of the locomotive. This was done with the approval of Van Ness, who was in charge of the laborers when at work, and the conductor of the train which carried them both ways. The plaintiff had no connection with the train. On the 12th of November before mentioned, the party of laborers, including the plaintiff, under the direction of Van Ness, were employed on the west side of the eastern branch of the Potomac, near where the defendant's road crosses that stream, in filling flat cars with dirt and unloading them at an adjacent point. The train that evening consisted of a locomotive, tender, and box-car. When the party was about to leave on their return that evening, the plaintiff was told by Van Ness to jump on anywhere; that they were behind time, and must hurry.

The plaintiff was riding on the pilot of the locomotive, and while there the train ran into certain cars belonging to the defendant and loaded with ties. These cars had become detached from another train of cars, and were standing on the track in the Virginia avenue tunnel. The accident was the result of negligence on the part of the defendant. Thereby one of the plaintiff's legs was severed from his body, and the other one severely injured. Nobody else was hurt, except two other persons, one riding on the pilot with the plaintiff, and the other one on the cars standing in the tunnel.

The defendant then gave evidence tending to prove as follows: About six weeks or two months before the accident, a box-car had been assigned to the construction train with which the plaintiff was employed. The car was used thereafter every day. About the time it was first used, and on several occasions before the accident, Van Ness notified the laborers that they must ride in the car and not on the engine; and the plaintiff in particular, on several occasions not long before the disaster, was forbidden to ride on the pilot, both by Van Ness and the engineer in charge of the locomotive. The plaintiff was on the pilot at the time of the accident, without the knowledge of any agent of the defendant. There was plenty of room for the plaintiff in the box-car, which was open. If he had been anywhere but on the pilot he would not have been injured. The collision was not brought about by any negligence of the defendant's agents, but was unavoidable. The defendant's agents in charge of the two trains, and the watchman in the tunnel, were competent men.

The plaintiff, in rebuttal, gave evidence tending to show that sometimes the box-car was locked when there was no other car attached to the train, and that the men were allowed by the conductor and engineer to ride on the engine, and that on the evening of the accident the engineer in charge of the locomotive knew that the plaintiff was on the pilot.

The evidence being closed, the defendant's counsel asked the court to instruct the jury as follows: 'If the jury find from the evidence that the plaintiff knew the box-car was the proper place for him, and if he knew his position on the pilot of the engine was a dangerous one, then they will render a verdict for the defendant, whether they find that its agents allowed the plaintiff to ride on the pilot or not.'

This instruction was refused, and the defendant's counsel excepted.

Three questions arise upon the record:--

1. The exception touching the admission of evidence.

2. As to the application of the rule relative to injuries received by one servant by reason of the negligence of another servant, both being at the time engaged in the same service of a common superior.

3. As to contributory negligence on the part of the plaintiff.

We pass by the first two without remark. We have not found it necessary to consider them. In our view, the point presented by the third is sufficient to dispose of the case.

Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion. See Wharton on Negligence, sect. 1, and notes.

One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is: 1. Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, 2. Whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened.

In the former case, the plaintiff is entitled to recover. In the latter, he is not. Tuff v. Warman, 5 C. B. N. S. 573; Butterfield v. Forrester, 11 East, 58; Bridge v. Grand Junction Railroad Co., 3 M. & W. 244; Davis v. Mann, 10 id. 546; Clayards v. Dethick, 12 Q. B. 439; Van Lien v. Scoville Manufacturing Co., 14 Abb. (N. Y.) Pr. N. S. 74; Ince v. East Boston Ferry Co., 106 Mass. 149.

It remains to apply these tests to the case before us. The facts with respect to the cars left in the tunnel are not fully disclosed in the record. It is not shown when they were left there, how long they had been there, when it was intended to remove them, nor why they had not been removed before. It does appear that there was a watchman at the tunnel, and that he and the conductor of the train from which they were left, and the conductor of the train which carried the plaintiff, were all well selected, and competent for their places. For the purposes of this case, we assume that the defendant was guilty of negligence.

The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cow-catcher, and obviously a place of peril, especially in case of collision. There was room for him in the box-car. He should have taken his place there. He could have gone into the box-car in as little, if not less, time than it took to climb to the pilot. The knowledge, assent, or direction of the company's agents as to what he did is immaterial. If told to get on anywhere, that the train was late, and that he must hurry, this was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cow-catcher, or put himself on the track before the advancing wheels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He and another who rode beside him were the only person hurt upon the train. All those in the box-car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an approach to a demonstration as any thing short of mathematics will permit. The case is thus clearly brought within the second of the predicates of mutual negligence we have laid down. Hickey v. Boston & Lowell Railroad Co., 14 Allen (Mass.), 429; Todd v. Old Colony Railroad Co., 3 id. 18; S.C.. 7 id. 207; Gavett v. M. & L. Railroad Co., 16 Gray (Mass.), 501; Lucas v. N. B. & T. Railroad Co., 6 id. 64; Ward v. Railroad Company, 2 Abb. (N. Y.) Pr. N. S. 411; Galena & Chicago Union Railroad Co. v. Yarwood, 15 Ill. 468; Dogget v. Illinois Central Railroad Co., 34 Iowa, 284.

The plaintiff was not entitled to recover. It follows that the court erred in refusing the instruction asked upon this subject. If the company had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such direction, and error to refuse. Gavett v. M. & L. Railroad Co., supra; Merchants' Bank v. State Bank, 10 Wall. 604; Pleasants v. Fant, 22 id. 121.

Judgment reversed, and the cause remanded with directions to issue a venire de novo, and to proceed in conformity with this opinion.


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Williams v. Morris

APPEAL from the Supreme Court of the District of Columbia.

In February, 1856, James Williams leased by parol certain land in the city of Washington, the legal title to which stood in his name, to Thomas B. Florence, with the privilege by the latter of purchasing it for $6,000. In the following month, Florence entered into possession as tenant of said James, and made certain improvements. On October, 1856, Florence, having learned that the heirs of John Williams were entitled to an undivided moiety of the land, entered, with the consent of James, into a written contract with them for the purchase of their interest, which by decree was conveyed to him in 1864.

In April, 1853, and April, 1854, the property was sold for taxes. One Ingle purchased it, and, after the perio allowed by law for redemption had expired, received deeds therefor from the corporation of Washington, dated June 11, 1857. Florence, after consultation with said James, paid Ingle the amount of the taxes and accrued expenses Dec. 29, 1859, and some months thereafter took from him a quitclaim for the property, which, with the corporation deeds to Ingle, he caused to be recorded. From March 1, 1856, to June, 1861, he remained in the personal occupation of the property. He then rented it to the United States for $175 per month, which rent he received until the commencement of this suit, Aug. 24, 1867, by the complainants, some of whom are minors. They are the heirs-at-law of James Williams, who died intestate Aug. 15, 1862.

The bill, after setting up the lase by James Williams to Florence, alleged, inter alia, that the defendant during his tenancy under the lease suffered by his default the property to be sold for taxes, and, having acquired the tax title, disclaimed his tenancy, and set up an adverse title in himself. It therefore prayed that Florence be decreed to convey to the complainants said tax title, and to account for a moiety of the rents and profits.

The defendant answered, setting up his parol contract with James to purchase, his subsequent discovery of the interest of the heirs of John in a moiety of the property, the fact of his purchase with the consent of James of that moiety, and its conveyance to him, and denied that thereafter he stood in the relation of tenant or paid rent; but, on the contrary, he paid all taxes and charges, and, with the full knowledge and consent of said James, acted gnerally as owner, and made repairs. He also alleged that said James had, by certain deeds of trust executed in 1843 and 1851, incumbered his moiety; and by another, executed in 1853, the whole property, in a sum beyond the amount of purchase-money and more than double the share of James for his moiety. That, notwithstanding said incumbrances, the defendant made various payments to said James, amounting from $1,500 to $2,000, on account of said purchase, but was unable to procure a settlement. The defendant filed with his answer the following receipts:--

'Received of Thomas B. Florence forty dollars, to be accounted for in the settlement for the purchase of the property at the corner of Pennsylvania Avenue and 17th Street, now in his occupancy, and sold by me to him.

'JAS. WILLIAMS.

'WASHINGTON, Jan. 1, 1857.'

'WASHINGTON, May 1, 1857.

'Received of Thomas B. Florence one hundred dollars, on account of purchase of building 17th St. & Pa. Av. $100.

'JAS. WILLIAMS.'

He also denied that he had suffered the property to be sold for taxes, but that said sales were for taxes due for the eight years preceding his entry.

On the 11th of March, 1873, the complainants were allowed to amend their bill by alleging that Florence, in October, 1856, purchased the undivided moiety of the heirs of John Williams, and thereby became tenant in common with James Williams; that, after said relation of tenants in common thus began, Florence purchased from Ingle the outstanding tax title, which was in all respects regular and according to law, and obtained from him a conveyance of the premises and of the full title thereof, which conveyance and title said Florence claimed to hold as his own, to the exclusion of the complainants.

The answer to the amended bill admitted the purchase in October, 1856, of the claim of the heris of John Williams under the circumstances set forth in the answer to the original bill; denied that such purchase created, or was intended to create, a tenancy in common with James Williams; and averred that after the same the defendant held and enjoyed the premises as the exclusive and absolute owner. It further denied the validity of the tax title; averred it to be void on its face, and that it was bought, with the knowledge and approval of James Williams, to relieve the property from the outstanding charge for taxes; and that a deed was taken from Ingle, be ause one to him had been entered on the books of the city; and that the complainants' allegation of the validity of the tax title was simply a pretext whereby to gain some color for the asserted jurisdiction of a court of equity.

At the final hearing in special term, April 8, 1873, the court decreed that the tax title purchased by Florence from Ingle was taken by him in trust for the complainants to the extent of one undivided moiety thereof; that the parol purchase set up by him was void under the Statute of Frands; and that, as there was no part performance to take it out of the statute, he should convey to the complainants said tax title to said moiety, and account for rents and profits.

Florence then appealed to the general term, where the decree of the special term was reversed and the bill dismissed. The complainants then brought the case here.

Florence having died pendente lite, Morris, his executor, was substituted in his stead.

The assignment of errors and other facts in the case are set forth in the opinion of court.

Mr. Richard T. Merrick and Mr. William A. Meloy for the appellants.

The original lease in March, 1856, being merely by parol, was inoperative after three years. When, therefore, Florence terminated his personal occupancy of the premises in June, 1861, and with it the relation of landlord and tenant, he became as to one undivided moiety of them the bailiff of James Williams, and liable to account under the statute of 4th Anne, c. 16, sect. 27. This alone would have established the jurisdiction of a court of equity over the case. But, in addition to that, Florence, by taking the conveyance in his own name from Ingle, committed a breach of trust and a fraud upon his co-tenant.

The tax title can afford no defence. The defendant's admission of the irregularity of the sale is conclusive, in the absence of proof by the complainants to the contrary. 3 Bl. Com. 451.

But even if the tax sale was valid, Florence, so far as one undivided moiety of the land was concerned, took the title in trust for James Williams. Rothwell v. Dewees, 2 Black, 613; Van Horne v. Fonda, 5 Johns. (N. Y.) Ch. 388; Lewis v. Robinson, 10 Watts (Pa.) 354; 1 Story, Eq., sect. 466; 1 Washburn, Real Prop. 430.

The memorandum set up by the defendant to take his alleged contract of purchase out of the operation of the Statute of Frauds is fatally defective. Boydell v. Drummond, 11 East, 157; Huddlestone v. Briscoe, 11 Ves. 591. The price to be paid, and a definite description of the property, are material parts, and cannot be proved by parol. Elmore v. Kingscote, 5 Barn. & Cress. 583; Taney v. Batchell, 9 Gill (Md.), 205; Tallman v. Franklin, 14 N. Y. 584; 1 Greenl. Evid., sect. 268; 2 Story, Eq. Jur., sects. 765-767. Whether it be set up as a defence, or as a ground for specific performance, the rules are the same. Browne, Frauds, sects. 122, 122 a, 131; Carrington v. Roots, 2 Mee. & W. 248; Reede v. Lamb, 6 Exch. 130. And a court of equity will not give relief, unless all the essential terms of the parol agreement are established by satisfactory proof, and the part performance has been of such a kind that to refuse relief would unavoidably operate as a fraud upon the party. Clinan v. Cooke, 1 Sch. & Lef. 41; Galbreath v. Galbreath, 5 Watts (Pa.), 150; Purcell v. Miner, 4 Wall. 513; Caldwell v. Carrington, 9 Pet. 86; 3 Phil. Evid. 351; Small v. Owings, 1 Md. Ch. 364; Beard v. Linthicum, id. 345; Elmore v. Kingscote, 5 Barn. & Cress. 583; 1 Greenl. Evid., sect. 268; Owings v. Baldwin, 1 Md. Ch. 123; 2 Story, Eq., sects. 764-767; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 131; Taney v. Batchell, supra. The part performance which takes the case out of the statute does not consist in the payment of money, but in the delivery of the possession in pursuance of the contract, with a view to the performance of it. Caldwell v. Carrington, 9 Pet. 103; Christy v. Barnhart, 14 Pa. 260; Brawdy v. Brawdy, 7 id. 157; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 149; Parkhurst v. Van Cortlandt, id. 273. Possession by a tenant is not sufficient, 1 Sugden, Frauds, 149, 162; nor is that by a tenant in common, however exclusive and notorious. Galbreath v. Galbreath, 5 Watts (Pa.), 146.

The expenditures for permanent improvements must have been made solely on the faith of the contract of sale, and the possession taken with exclusive reference to it. Owings v. Baldwin, supra; 2 Story, Eq. Jur., sects. 763, 764; Moale v. Buchanan, 11 Gill & J. (Md.) 314; Caldwell v. Carrington, supra.

The rulings in regard to laches, staleness, or lapse of time have no application to this case. Badger v. Badger, 2 Wall. 87.

Mr. Walter D. Davidge, contra.

The bill of the complainants should have been dismissed. It was not filed until nearly ten years after the purchase complained of, and nearly five years after the death of James Williams. There is no allegation of fraud, and no attempt to explain the delay. Marsh v. Whitmore, 21 Wall. 178; Badger v. Badger, 2 id. 87; Harwood v. Railroad Company, 17 id. 78; The Key City, 14 Id. 653; Twin-Lick Oil Company v. Marbury, 91 U.S. 587.

Whilst a tenant cannot dispute the title of his landlord, he may show that it has expired or become extinguished. Taylor, Land. and Ten., sect. 629, and cases cited. When the reversion is sold under execution, he may buy it, and set up against the landlord the title so acquired. Nellis v. Lathrop, 22 Wend. (N. Y.) 121; Jackson v. Rowland, 6 id. 666; Depard v. Walbridge, 15 N. Y. 374. When not under obligation to pay taxes, he may even buy at a tax sale. Cooley on Taxation, 345, 346. And the title so acquired, if the proceedings conformed to the statute, extinguishes his former relation to the landlord. Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251; Lewis v. Robinson, 10 Watts (Pa.), 354; Watkins v. Eaton, 30 Me. 529; Reinboth v. The Zerbe Run Improvement Co., 29 Pa. 139.

The averment of the validity of the tax title is binding on the complainants. They can recover only secundum allegata et probata; and, if that title be invalid, there is no ground for the exercise of equitable jurisdiction. Ewing v. St. Louis, 5 Wall. 413; Dows v. Chicago, 11 id. 108; Hannewinkle v. Georgetown, 15 id. 547; Scott v. Onderdonk, 14 N. Y. 9; Cox v. Clift, 2 id. 118; Heywood v. The City of Buffalo, 14 id. 534; Ward v. Dewey, 16 id. 519; Piersoll v. Elliott, 6 Pet. 95.

The two receipts signed by James Williams contain all the requisites of the note or memorandum under the Statute of Frauds, except that of price, and are prima facie evidence of a sale legally made. Slatterie v. Pooley, 6 Mee. & W. 663; 1 Phil. Evid. (4th Am. ed. 1859), pp. 422-424, where the authorities are collected; 1 Taylor, Evid., p. 413, sect. 381; Best, Evid., sects. 525, 526.

The English rule has been followed in America. Smith v. Palmer, 6 Cush. (Mass.) 513; Loomis v. Wadhams, 8 Gray (Mass.), 557; Taylor v. Peck, 21 Gratt. (Va.) 11.

The particulars of the contract are not involved in this suit. The controlling question is whether Florence bought at all, not upon what terms. The factum probandum is the fact of purchase, and the contract is wholly collateral. Rex v. Inhabitants of Holy Trinity, 7 Barn. & Cress. 611; Doe v. Harvey, 8 Bing. 239, 241; Spiers v. Willson, 4 Cranch, 398; 1 Greenl. Evid., sects. 96, 97; 1 Taylor, Evid., sect. 376; Taylor v. Peck, 21 Gratt. (Va.) 11.

Parol contracts do not involve any violation of law. Courts of equity refuse to extend their aid to rescind them merely because they are not in writing. Browne, Frauds, ect. 123, and cases cited; id., sects. 129-131; Abbott v. Draper, 4 Den. (N. Y.) 51; Cope v. Williams, 4 Ala. 362.

The court is asked to decree that a vendee acquiring in good faith a title necessary to protect the interests of himself and his vendor, is a trustee for the heirs-at-law, who, after the lapse of eleven years, undertake to repudiate the agreement of their ancestor.

Had he attempted by means of the tax title to escape his obligations as vendee, he could properly be held a trustee as to the unpaid purchase-money. The purchase-money, however, deducting the mortgages, has been paid, and he offers to account; and, besides, the bill is in repudiation and not affirmance of the contract.

The question is, then, whether, after such a vendee has obtained a perfect title which he holds in subordination to the parol contract, he can, without any imputation of fraud, be held a trustee, except as to his obligations under that contract. That he cannot be so held is plain, in principle and upon authority.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Williams v. Morris


text: Talk:Williams v. Morris

title: Talk:Williams v. Morris