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Harvey v. United States (105 U.S. 671)/Opinion of the Court

On the 12th of May, 1869, General Rodman, in command of the United States Arsenal at Rock Island, Illinois, caused to be published the following advertisement, in pursuance of law:--

'PROPOSALS FOR BRIDGE MASONRY.

'Sealed proposals will be ree ived at this arsenal up to 10     o'clock A. M. on the twenty-fifth day of May, 1869, for the      construction of the piers and abutments of the railroad and      wagon-road bridge to be built to connect the island of Rock      Island with the city of Davenport. It is proposed to build,     say, five common piers, one draw-pier, and two abutments. The     stone and cement required for the work will be furnished on      railroad cars, on arsenal switch, near the island end of the      proposed bridge, and the sand required for the cement will be      furnished by the United States at or near the same point. All     the masonry must be of the best quality of bridge masonry,      the stones in each course must be well banded, and each      course well secured by dowels to the course below under      cut-water, and at lower end of piers, and the foundation      courses must be fairly bedded and well secured to the      rock-bed of the river, the work as it progresses being      subject to the inspection and approval of the commanding      officer of the arsenal, or such other officer or person as      may be designated by proper authority. Detailed information     with regard to the general form and dimensions of the piers      and abutments, and a profile of bed of river, can be obtained      by personal application at the arsenal. The total amount of     masonry is estimated at about 10,000 cubic yards. All the     piers and abutments will be required to be completed prior to      the first day of December, 1869. Parties making bids will     state the price per cubic yard of solid masonry at which they      are willing to complete the work, the United States      furnishing the stone, cement, and sand, as above stipulated,      and nothing more. They will also make a bid stating     separately the price per cubic yard of solid masonry at which      they will undertake to build the piers and abutments, the      United States furnishing the stone, cement, and sand, as      above, and the price at which they will agree to put in the      necessary coffer-dams with their protections. Proposals will     be indorsed 'Proposals for Bridge Masonry,' and addressed to      the undersigned. The United States reserves the right to     reject any bid not deemed satisfactory.

'T. J. RODMAN,

'''Lt. Col. and Bvt. Brig. Gen. U.S. A., Commanding''.' The appellants put in the following proposal:--

'ROCK ISLAND, May 25th, 1869.

'We propose to build the masonry of piers and abutments of     the Rock Island bridge, as per annexed advertisement:--

Small piers and abutments, per yard. $11

'HARVEY & LIVESEY,

'Madison, Wisconsin.'

The only other proposal put in was one by Reynolds, Saulpaugh, & Co., as follows:--

'ROCK ISLAND, ILL., May 25th, 1869.

'Brig.-Gen'l T. J. RODMAN, Com'd'g Rock Island Arsenal.

'SIR,-We respectfully propose to build your piers and     abutments for the rail and wagon road bridge between the      island of Rock Island and the city of Davenport, in      accordance with the terms of your advertisement of May 12,      1869, at prices as follows:

'Solid masonry at $19.10 per cubic yard in the work complete,     the United States furnishing the stone, cement, and sand, as      stipulated, and nothing more. This price is based on 10,000     cubic yards of masonry in the work when completed. Or, as per     your second plan, at prices as follows:--

'Solid masonry at $12.70 per cubic yard in the work complete,     the United States furnishing the stone, cement, and sand, as      above, and build the coffer-dams at prices as follows:--

For pier No. 1, dam............ 18 feet high. $7,

For pier No. 2, dam............ 15 feet high. 34,

For pier No. 3, dam............ 13 feet high. 6,

For pier No. 4,5,& 6,.......... 12 feet high. 15,

-

$63,

'The above prices for dams include the protections to the     same, complete.

'Respectfully yours,

'REYNOLDS, SAULPAUGH, & CO.'

The bid of the appellants was accepted. A contract was then drawn by a clerk of General Rodman's. A rough draft of it was submitted to the appellants, and, on their returning it as satisfactory, the engrossed copies were prepared fr signature, and the contracts were executed and interchanged, bearing date June 1, 1869. The following are the provisions of the contract which are material to this case: 'The parties of the first part do hereby contract and engage with the said United States to construct the piers and abutments for the new rail and wagon bridge, to be built to connect the island of Rock Island with the city of Davenport, in accordance with such plans and specifications as may be fixed by proper authority acting for the United States; the United States to furnish stone, cement, sand, and all necessary templets required for the work, and nothing more; the stone and cement to be delivered in cars at the government switch on the island, near the site of the work. . . . The character of the work to be daily inspected as it progresses by such officer or other person as the commanding officer of the Rock Island arsenal or other authority appointed by the United States, may designate; such inspector to have full authority to give any directions with regard to the character or manner of conducting the work. The whole work to be completed prior to the first day of December next, provided that the stone shall be delivered at the rate of 2,000 cubic yards per month; and, in case of any failure on the part of the United States to deliver this amount of stone, then the work to be completed as soon after the first day of December next as practicable. . . . Payment in such funds as the Treasury Department may provide, at the rate of thirteen (13) dollars per cubic yard for all masonry in the draw-pier, and at the rate of eleven (11) dollars per cubic yard for all other masonry. . . . It is further stipulated and agreed, that if any default shall be made by the parties of the first part in the performance of their work specified in this contract, of the quality and at the times and places therein provided, that then, in that case, the United States shall have the right to take entire and exclusive charge of the work, and to complete it in accordance with the conditions prescribed by this contract, charging us with the entire cost of completing it, and crediting us with the amount per cubic yard heretofore stipulated to be paid us for the completing of the work.'

On the 14th of December, 1870, the appellants filed a petition in the Court of Claims praying a judgment against the United States for $200,400. The petition set forth that the contract was one for doing the masonry work in and about the construction of the piers and abutments; that proposals were invited for said work, and also separate proposals for putting in the necessary coffer-dams and their protections, but the petitioners bid only for said masonry work in the construction of said piers and abutments; and that their bid, being the lowest one for said masonry work, was accepted, and the contract was awarded thereon. The petition made the following claims, by items, against the United States: 1. For damages incurred by reason of the unreasonable delay caused by defendants from June 7, 1869, to Sept. 4, 1869, $25,000; 2. For putting in coffer-dams and protections, for pumping the water therefrom, and for preparing the beds for the piers and abutments, $75,000; 3. For loss of profits incurred by the unlawful reduction of the dimensions of the piers and abutments, $33,600; 4. For increase in the cost of the work, by having been compelled to do it in cold weather, $15,000; 5. For constructing 4,400 cubic years of masonry, at, say, $12 per yard, $52,800; 6. For loss caused by neglect of defendants to furnish materials and locate piers and abutments, whereby the plaintiffs, their workmen and tools, were kept idle, $15,000; 7. For loss of machinery, vessels, and tools, caused by the ejectment of the plaintiffs from the work, $25,000; 8. For dressing coping and corners of abutments, and dressing noses of piers under water, not required by contract, $5,000. This made a total of $246,400, on which $46,000 was credited as paid, leaving a balance of $200,400. The petitionc ontained allegations bearing upon each one of the eight items claimed, but it is not necessary here to refer to any but those in respect to items 2 and 3, which allegations were as follows: 'That about the thirteenth day of September, 1869, the United States having furnished materials sufficient to commence the construction of said piers and abutments, the petitioners requested the agent of the defendants to put in, or cause to be put in, the necessary coffer-dams and to pump the water therefrom, and prepare beds for said piers and abutments, to enable petitioners to proceed with the performance of their contract. But the United States refused to put in such coffer-dams and pump the water therefrom, and refused to prepare said beds, pretending that petitioners were bound, under said contract, to put in said coffer-dams. the petitioners thereupon protested against such wrongful construction of said contract, but, at the special request of the defendants, and relying upon the good faith of the United States, they undertook to and did put in the necessary coffer-dams and protections, and pump the water therefrom, and did prepare the beds for said piers and abutments. That the labor and materials expended in putting in said coffer-dams and protections, and pumping water and preparing beds as aforesaid, was reasonably worth, and they are entitled to recover for the same from the United States, the sum of seventy-five thousand dollars. That they were informed by the United States, prior to the making of said proposal, that the draw-pier would be four hundred and seventy-four feet long and fifty-six feet wide, and that the five common piers would be each seventy-four feet long and fourteen feet wide, and that. with the abutments, there would not be less than ten thousand cubic yards of masonry work, and that petitioners based their estimates for said work upon such information, and made their said proposal in the belief that said piers and abutments would be constructed according to such dimensions. But they allege that the defendants, on or about the twenty-second day of July, 1869, transferred the supervision of said work from the Ordnance Bureau to the Bureau of Engineers, and that the petitioners, although they were at all times ready and anxious to proceed with said work, kept waiting from the seventh day of June, 1869, until September 7th, 1869, as aforesaid, and that, on or about the said seventh day of September, 1869, the defendants marked out the location for one pier and one abutment only, and wrongfully reduced the dimentions of all the said piers and abutments, so that, instead of measuring ten thousand cubic yards, they measured only about six thousand five hundred; and that, by reason of said reduction, by said defendants, in the dimensions of said piers and abutments, the petitioners have been damaged in the full sum of thirty-three thousand six hundred dollars.'

Subsequently the petitioners amended their petition as to item 5, so as to make it read as follows: 'For handling, cutting, preparing, and setting stone for and in the piers and abutments, $82,000.' The United States, by answer, denied every allegation in the petition, and set up a counterclaim for $33,681.35, alleging that, under the contract, the petitioners being in default, the United States took charge of the work and completed it, and charged the petitioners with the entire cost of completing it, $142,457.17, and credited them with the amount per cubic yard stipulated in the contract to be paid them for completing the work, $108,775.82, leaving a balance due to the United States from the petitioners of $33,681.35.

Proofs were taken, and the case was heard by the Court of Claims. It awarded to the petitioners $20,068 in respect of items 1 and 6. As item 2, the court found that it was necessary, in order to the laying of the abutments and piers, that a coffer-dam should be built for each abutment and pier, and the water pumped out of it, and the bed of the river prepared for laying the masonry of the abutment or piert hereon; that without such coffer-dams it was impracticable to construct any of the abutments or piers; that the petitioners, on the 13th of September, 1869, requested that United States to forthwith construct the requisite coffer-dams, exhaust the water therefrom, and prepare the bed for the piers and abutments where necessary for the commencement of the work; that the United States, on the next day, refused so to do, on the ground that, under the contract, it was the business of the petitioners to do the work; that on the next day the petitioners protested against such refusal, and notified the United States that they should proceed at once to build the dams, pump the water therefrom, and prepare the beds, and should hold the United States for the payment of the costs and expenses of the same; that on the next day General Warren, in charge of the construction of the bridge, consented, in order not to delay the work, to its going on until the matter could be referred to the Attorney-General of the United States, but stated that in such consent it must be considered that nothing was admitted in favor of the claim of the petitioners to their interpretation of the contract; that, immediately upon such refusal of the United States, the petitioners proceeded to build the requisite coffer-dams; and that all that was required in that respect while the work was in their hands was done by them. But the court found, as a conclusion of law, that the contract did not require the United States, but required petitioners, to do the work named in item 2. As to item 3, the court found that about the 17th of July, 1869, General Rodman was relieved from the charge of the construction of the bridge by General Warren, of the corps of engineers; that General Warren, on the 22d of August, 1869, caused notice to be given to the petitioners that the position of the abutment and first pier of the bridge, onthe Iowa side, was determined and marked, ready for them to commence their construction; that, when proposals were so invited by advertisement, General Rodman had prepared certain plans of the bridge, intended to show the general forms and dimensions of the piers and abutments, and a profile of the bed of the river; that those plans were seen and inspected by the petitioners before they sent in their said proposal; that the dimensions of the piers of the bridge which were fixed upon on the 22d of August, 1869, and those which were, after that date, from time to time fixed upon, were less than the dimensions indicated in the plans prepared by General Rodman and shown to the petitioners before they made their said proposal; but that there was no reduction of the sizes which were fixed upon on the last-maned day, nor was there any reduction of the sizes thereafter adopted. The court found, however, as a conclusion of law, that the reduction made in the dimensions of the piers and abutments of the bridge, as originally projected, was not, by the legal construction of the contract, wrongful to the petitioners. As to item 4, the court found that the petitioners were not subjected to any increase in the cost of the work by having been compelled to do it in cold weather. The court also found that on the 6th of October, 1870, the petitioners were notified in writing by the officer in charge of the work on the bridge, that in consequence of complaints which had reached the chief of engineers of the United States army, of the tardy progress of the work on the masonry of the bridge, the said officer had been required to take suitable and efficient measures to expedite the work, and that, in view of that requirement, he would take the work as it stood and carry it on under the provision of the contract which contemplated such a change; that on the next day the petitioners, in writing, refused to give up the work, whereupon, on that day, the said officer notified them in writing that he would on the next day take possession of the work for the government, which he did, against the assent and protest of the petitioners; and that thn ceforward the work was prosecuted by the officers of the government. In regard to item 5, as amended, the court found that the petitioners, before their ejectment from the work, had done work upon and for the bridge, under the contract, to the amount of $76,344.47, and had been paid on account of said work $54,105.98, leaving due to them under item 5, $22,238.49. As to item 7, the court found that the petitioners did not sustain any damage by reason of the idleness of their tools, machinery, and vessels, after Oct. 8, 1870, which they would not have sustained had they on that day completed their work under the contract, or whiich was not incident to the termination, at any time, of their work under the contract. As to item 8, the court found that the petitioners were paid in full for all the extra work they did on or about the abutments and piers of the bridge. The court awarded to the petitioners $42,306.49, being $20,068 on account of items 1 and 6, and $22,238.49 on account of item 5, and rejected their claims under items 2, 3, 4, 7, and 8.

The opinion of the Court of Claims, in deciding the case, is found in 8 Ct. of Cl. 501. From that it appears that, in regard to item 2, the court held that neither the advertisement nor the bid could be invoked to interpret the contract; and that the proper construction of the contract was that it was the duty of the petitioners to build the coffer-dams, pump the water therefrom, and prepare the bed of the river for the piers and abutments which they were bound to construct. In regard to item 3, the court held that under the contract the officer in charge had the power to make the alterations in the dimensions of the piers which made the profits to the petitioners less.

The Court of Claims having no equitable jurisdiction to refrom a contract, the petitioners acquiesced in the decision made, so far as not to take an appeal to this court, and to receive payment from the United States of the amount of the judgment for $42,306.49; but they applied to Congress, and procured the passage of the act of Aug. 14, 1876, c. 279 (19 Stat. 490), which provides as follows: 'That the claim of James W. Harvey and James Livesey for alleged labor done and materials furnished under their contract with the United States for the building of the masonry-work for the piers and abutments of the bridge across the Mississippi River from Rock Island to Davenport, Iowa, bearing date June first, eighteen hundred and sixty-nine, be, and the same is hereby, referred to the Court of Claims, for hearing and adjudication; and to that end jurisdiction is hereby conferred on said court to proceed in the adjustment of the accounts between said claimants and the United States, as a court of equity jurisdiction; and may, if according to the rules and principles of equity jurisprudence, in its judicial discretion, reform said contract and render such judgment as justice and right between the claimants and the said government may require.'

On the 30th of August, 1876, the petitioners filed in the Court of Claims a petition, which recites the former proceedings, and the judgment, and its payment, and the contents of the said act of Congress, and then proceeds as follows: 'The plaintiffs allege that there is still justly due to them from the United States a large sum of money for damages and for work and materials, and, in addition to the charges made in the aforesaid original petition, they say that connected with the pivot-pier of said bridge there were large walls of stone masonry and crib-work, connecting the upper and lower rests of the pivot-pier with the pivot thereof, which were constructed mainly of irregular or rip-rap masonry, and that, to finish the abutment on the Iowa shore, wing-walls, constructed of 'rip-rap' masonry, were necessary, all of which was part of the plaintiffs' work under the contract; that, this work being cheap and easily done, the officers in charge of said work in behalf of the United States refused to permit the plaintiffs to do it, and employed laborers and construce d the same for the United States, and thus unjustly and unlawfully deprived the plaintiffs of large profits, which they otherwise would have made. They allege that they could have made, on the said work, the sum of $51,000 in profits. The plaintiffs aver that there is justly and equitably due to them from the United States, on account of the premises, and in addition to the amount already paid to them, the sum of $239,600, with interest, according to the following specifications, to wit: 1. For labor done, and materials furnished by the plaintiffs, in constructing the coffer-dams, and in performing the work necessarily connected therewith, and, preliminary to the masonry-work for said piers and abutments, $75,000; 2. For loss and damages resulting to the claimants in consequence of the reduction of the dimensions of the piers and abutments, made subsequently to the making of the contract, $33,600; 3. For loss of machinery, vessels, and tools, caused by taking from the plaintiffs the work under their contract, $25,000; 4. For extra work, dressing coping and corners of abutments, and dressing noses of piers under water (this work not being required by the contract), $5,000; 5. For the profits they could have made had they been permitted to build the cross-walls and crib-work connecting the upper and lower rests with the pivot (part of the contract), $48,000; 6. For profits they might have made had they been permitted to construct the wing-walls for the Iowa shore abutment; these walls were 'rip-rap,' and a part of the work under the contract, out of which liberal profits could have been made; the agents of the United States performed the work, $3,000; 7. For profits they might have made had they been permitted to complete the work according to the intention of the parties and the terms of the contract, in addition to the foregoing charges, $50,000; 8. For interest on the amount found due to the claimants on an equitable adjustment of accounts between the parties, from October 6th, 1870, until the date of the judgment of this court, at the rate of six per centum per annum. The petitioners therefore claim judgment against the United States for the sum of $239,600, with interest thereon at six per centum per annum; and they pray the court to reform the said contract, if the same be necessary, so as to make the same conform to the intention of the parties and to be in consonance with justice and equity, and for such other and further or general relief as in justice and right they may be entitled to have.' The United States demurred to this petition on the ground that it did not allege facts sufficient to constitute a cause of action. The court sustained the demurrer and gave leave to the petitioners to amend the petition. 12 Ct. of Cl. 141. One of the grounds on which the court proceeded was, that so far as the demands covered by the new petition are legal demands, under the contract, enforceable in a suit at law founded on the contract, such demands cannot, under the special act of Congress, come under the cognizance of the court. This view is, in our judgment, correct. The court further held, that there were no averments in the petition showing a title to equitable relief founded on the view that the written contract did not set forth the true agreement, and no facts alleged showing a right to recover on the reformed agreement. It was held that the court was to proceed simply 'as a court of equity jurisdiction,' and that the accounts which it could adjust and the relief which it could give must be limited to matters which, because of its inability to sit as a court of equity, it could not and did not before determine.

A comparison of the new petition with the first petition shows that items 1, 2, 3, and 4 in the new petition are severally reproductions of items 2, 3, 7, and 8 of the first petition; that items 5, 6, 7, and 8 in the new petition are entirely new; and that items 1, 4, 5, and 6 in the first petition are not reproduced in the new petition, an award having been made in the judgment inr espect of items 1, 5, and 6 in the first petition, and item 4 therein being abandoned.

The petitioners proceeded, under the leave granted, to amend their petition in equity, by adding thereto the following allegations: 'The contract mentioned in the original petition in this cause was intended to carry out and execute the specifications and agreements contained in a certain advertisement or invitation for proposals for constructing the piers and abutments of the said bridge, published by the defendants, and in a bid made in pursuance thereof by the plaintiffs. The agents of the United States, by said advertisement, requested the persons bidding in pursuance thereof to state (1) the price per cubic yard of solid masonry at which they were willing to complete the work; (2) the price per cubic yard of solid masonry at which they were willing to build the piers and abutments; and (3) the price at which they were willing to put in the necessary coffer-dams and protections. The said invitation for proposals also apprised the bidders that detailed information as to the general form and dimensions of the piers and abutments, and a profile of the bed of the river, would be exhibited to them at the arsenal. In pursuance of that part of the said invitation which referred to the work of building the solid masonry of the piers and abutments, and after having first obtained from the defendants' agents detailed information touching the form and dimensions of the proposed piers and abutments, and after having examined the profile of the bed of the river exhibited by the defendants, the plaintiffs, on the twenty-fifth day of May, 1869, submitted to the proper officers of the United States a proposal in writing, whereby they offered to build (only) the masonry of the said piers and abutments, upon the terms following, to wit, the small piers and abutments at and for the sum of eleven dollars per yard, and the draw-pier at and for the sum of thirteen dollars per yard. The said proposal was accepted by the defendants, and the said contract, in the original petition described, was prepared in the office of the agent of the United States, by a clerk therein employed, but, in consequence of accident and mistake, the said contract was so drawn as to depart from the intention of the parties and from the terms and specifications in said invitation and proposal contained. Instead of requiring the plaintiffs to perform the labor and furnish the materials contemplated by the said invitation and proposal, and in the manner specified therein, the language employed in said contract inequitably required the plaintiffs 'to construct the said piers and abutments in accordance with such plans and specifications as may (might) be fixed by proper anthority acting for the United States.' The plaintiffs did not discover the peculiar language of the said contract until long after the work had been in progress, nor did they ever believe that they were bound by said contract to do any more work, or furnish any more materials, or that they were obliged to perform the work in any other manner, than as specified and contemplated in the said invitation and proposal, until the judgment of this court compelled them to submit to said construction. When the officers of the defendants first claimed for the said contract the strict construction aforesaid, the plaintiffs protested, and refused to proceed any further with the work, but the said officers, by promises (which they never kept), induced the plaintiffs to go on, notwithstanding the dispute, and they accordingly did proceed, and they were required by the agents of the United States to construct the coffer-dams and do all other work and furnish all other materials preliminary to building the solid masonry for said piers and abutments, and to construct said piers and abutments on very materially different plans and in different localities from those contemplated by the parties at the time of making said proposal, and said piers and abutments so built were, in consequence of the alteratios in the form and locality thereof, much more expensive to the plaintiffs, for which no allowance has ever been made to them. Through the error and mistake aforesaid, the defendants were given an unfair and unconscionable advantage over the plaintiffs, and have obtained the materials, labor, and skill of the plaintiffs, of great value, and have paid nothing for them. The labor performed and the materials furnished by the plaintiffs for the United States, in putting in said coffer-dams and furnishing the other materials and performing the other work preliminary to building the masonry of said piers and abutments, were reasonably worth the sum of seventy-five thousand dollars; and the work done and materials furnished by them for the United States in and about the masonry of said piers and abutments were reasonably worth, in consequence of the change of locality and of plans and specifications unlawfully made by the defendants under the erroneous provisions of said contract, the sum of thirty-three thousand and six hundred dollars, over and above the sums which the plaintiffs have already been paid therefor. The plaintiffs, therefore, pray that the said contract may be so reformed as to correspond with the intention of the parties, and that they may be paid for the labor and materials by them performed and furnished upon the said bridge. They further pray that they may have such other and further relief, and be paid such other and further sums of money, as may be agreeable to equity and good conscience, and as the provisions of said act of Congress may authorize and require.'

By leave of the court, the petitioners filed a second amendment to the petition in equity, stating as follows, in addition to what was contained in said petition and the first amendment thereto: 'First, By the terms of the advertisement inviting proposals, the proposal of the plaintiffs, and the acceptance thereof by the defendants, as alleged in the original petition herein and the amendment thereto, a preliminary agreement was made between the plaintiffs and the defendants, by which the plaintiffs agreed to build the masonry-work of the piers and abutments of the said bridge at Rock Island, for the prices stated in the said original petition and the amendment thereto, and according to certain plans showing the general form and dimensions of the piers and abutments and their locations in the river, and according to a profile showing the bed of the river at the place where the work was to be done, which plans and profile were, before the making of the proposal, exhibited by the defendants to the plaintiffs, and were by them inspected, to enable them to prepare their estimates for making their said proposal. And the United States thereby agreed to furnish the stone, cement, and sand for said masonry, and also to erect and put in the necessary coffer-dams, with their protections, and to perform the preliminary work necessary to enable the plaintiffs to build the said masonry-work according to their said proposal and according to said general plans, and at the location in the river indicated by said plans and profile. Second, For the purpose and with the intent and design of carrying into effect said agreement thus made as aforesaid, a formal contract was prepared by officers of the United States, which was afterwards signed and delivered by both parties; but, by accident and mistake, the said contract did not conform to the terms of said previous agreement, nor to the intention of the parties. The said contract was, by such accident and mistake, so drawn as to impose upon the plaintiffs the burthen and expense of constructing and putting in the necessary coffer-dams with their protections, and of performing the preliminary work connected therewith, instead of requiring the United States to put in said coffer-dams and perform said preliminary work, as had been previously agreed upon, and as was intended by the parties. The cost of constructing and putting in said coffer-dams with their protections and doing the preliminary work cn nected therewith, was as great if not greater than the cost of building the masonry-work, and, in consequence of the said accident and mistake, the United States obtained an unconscionable advantage over the defendants, and compelled them to do work and furnish materials which they never intended to do, and for one-half the compensation the said work and materials were really worth. And the said contract, through accident and mistake, was so drawn as to require the plaintiffs to build the said piers and abutments in accordance with such plans and specifications as might be fixed by the officers of the United States, instead of requiring the United States to provide plans, and the plaintiffs to do their work, according to the general plans and profile exhibited to the plaintiffs, as aforesaid, and at the location in the river agreed upon, as was the intention of the parties, and as had been previously agreed upon by the parties. And the defendants, through said accident and mistake, have obtained an inequitable and unconscionable advantage over the plaintiffs, and, in the construction of the said bridge, changed its locality further down the river and into deep water, and reduced the dimensions of the piers and abutments as prescribed by said original plans, in such a manner as to preserve the cut-stone or expensive portion of the work, and to greatly reduce the quantity of rough, inexpensive work, through which alone profit could be derived by the plaintiffs, and thereby inflicted great injury upon the plaintiffs. The petitioners submit to the court that they are entitled to have said contract reformed, so as to make it conform to the intention and to the agreement of the parties, as expressed in the said invitation for proposals and the bid of the plaintiffs submitted in response thereto, and the acceptance thereof by the defendants, and to have the same judgment and relief as to the said coffer-dams and the work of constructing the piers and abutments as if the said formal contract had conformed to the said preliminary agreement and had contained the necessary provisions requiring the defendants to construct and put in the necessary coffer-dams and to perform the preliminary work connected therewith, and so as to conform in all things in reference to the construction of the said bridge and piers and abutments, to the said original and general plans of said bridge, and to the profile of said river-bed, and to the location thereby indicated. And the petitioners claim such other and further relief in the premises as their case may require, and as may be authorized by the terms of the said act of Congress passed for their relief.'

The United States, by answer, denied all the allegations of the petition and the amendments. The evidence in the first case was used as evidence in the second case, and no new evidence was taken. The court entered a general finding in favor of the defendants and dismissed the petition. From the decree of dismissal the petitioners have appealed to this court.

The reasons assigned for that decree are contained in the opinion of the Court of Claims, which is a part of the record, and is also reported in 13 Ct. of Cl. 322. The court says, that because of the decision on the demurrer it regards the present proceedings as relating only to the claims for the cost of the coffer-dams and for the loss of profits resulting from the reduction of the dimensions of the piers and abutments, being items 1 and 2 in the new petition. In In regard to item 1, the decision is that the petitioners have not shown that the written contract does not express the intent of both parties as to the coffer-dams; and that even if the court were satisfied that the petitioners executed the contract in mistake of their rights, there is no evidence that the defendants shared the mistake. In regard to item 2, the decision is that the court would be disposed to regard the case, on on the facts, as one for equitable interposition for the purpose of further inquiry, and the ascertainment of the rights f the parties in equity, if it had jurisdiction; but that the statute does not authorize it to entertain those considerations, because in these proceedings it can hear and determine only claims for labor done and materials furnished by the plaintiffs under their contract with the defendants.

In regard to the coffer-dams, it seems clear to us that the ruling of the Court of Claims was erroneous. The advertisement begins by inviting proposals for the construction of the piers and abutments of the bridge. Standing alone, this would involve proposals to make coffer-dams, and do and furnish everything else necessary to finished work. But this is qualified by what follows. The advertisement goes on to say that parties making bids will state (1) the price per cubic yard of solid masonry at which they are willing 'to complete the work,' the United States furnishing the stone, cement, and sand, 'and nothing more.' 'To complete the work' there means to construct the piers and abutments complete, including the making of coffer-dams and doing and furnishing everything necessary for completed work, except furnishing stone, cement, and sand, the United States furnishing those, and furnishing nothing more. Then parties making bids are 'also' to make a bid stating (2) separately the price per cubic yard of solid masonry at which they will undertake to build the piers and abutments, the United States furnishing stone, cement, and sand; and 'also' to make a bid stating (3) separately the price at which they will agree to put in the necessary coffer-dams, with their protections. Here are three distinct classes of bids: bid 1 for the whole work, including all that is embraced in the work specified in bids 2 and 3; bid 2 for a part of the whole work specified in bid 1 and excluding what is embraced in bid 3; and bid 3 for another part of the whole work specified in bid 1 and excluding what is embraced in bid 2. There is no implication in the advertisement from the use of the word 'also,' or from any other language, that a bidder could not make bid 2 or bid 3 unless he likewise put in a bid for bid 1; or that he could not bid for the specified parts of the work unless he should bid for the whole complete. The appellants did not make a bid for the work complete, or say in their bid that they were willing to complete the work. They bid only under bid 2. They stated separately in their bid, the price per yard at which they would build the masonry of the piers and abutments. They excluded bid 3 and the coffer-dams, and they excluded bid 1 and the coffer-dams in it. This is quite enough to determine the question. The written bid in connection with the advertisement, and the acceptance of that bid, constituted the contract between the parties, so far as regards the question whether the contract prices embraced the coffer-dam work. Garfielde v. United States, 93 U.S. 242; Equitable Insurance Co. v. Hearne, 20 Wall. 494. The written contract, in that respect, was intended by both parties to be merely a reduction to form of the statement as to work and prices contained in the bid. If the formal contract is susceptible of a different construction, to the prejudice of the contractors, it is very plain that not only the contractors but the officers of the government were under a mistake. It is shown that the work of making and putting in the coffer-dams, and doing whatever else was necessary, in connection with them, before the laying of the masonry could be commenced, was so expensive as to make it impossible that the prices named in the bid of the appellants could have covered that expense and the laying of the masonry also. There is no evidence to show that the parties intended to alter the terms of the bid as to work and prices. There are other considerations dwelt upon in the dissenting opinion of Judge Nott in the Court of Claims, and to which it is necessary only to refer, which enforce the conclusion thus reached. One of those considerations is, the terms of the only other bid, as showing by the price therein named for bid 1, bid 2, and bid 3, each separately, that the appellants could not have been bidding for the work complete. The evidence on the point in question on the part of the appellants is largely in documents, while that relied on by the United States is oral, and some of it consists of recollections of conversations with the appellants, who are debarred by statute from being witnesses in their own behalf. We are of opinion that by the actual contract between the parties the appellants were not to do any of the work covered by the claim made by them under item 1 of the petition herein, and that the written contract must be reformed accordingly.

We are also of opinion that the Court of Claims placed too limited a construction upon the special act of Congress. The act speaks of the claim of the appellants as a claim 'for alleged labor done and materials furnished under their contract with the United States for the building of the masonry-work for the piers and abutments of the bridge,' giving the date of the contract. The Court of Claims had rejected item 2 in the first case because the formal written contract required the petitioners to do the work named in it. It had rejected item 3 because that contract gave the government power to reduce the dimensions of the piers and abutments. It was to obtain equitable relief in respect to those two items that the appellants applied to Congress. Their claim had been made in the eight items embraced in their petition in the first case. It had been made as a claim under their contract. It cannot be properly inferred, unless there is language necessarily leading to a contrary conclusion, that the claim referred to the Court of Claims by the act is to embrace less than what was embraced in items 2 and 3 in the first case, although item 3 is made out as for 'loss of profits.' The act refers 'the claim' 'under the contract,' for hearing and adjudication; and jurisdiction is conferred on the court to proceed in the adjustment of 'the accounts' between the persons making the claim and the United States, as a court of equity jurisdiction. The court had decided that it could not take cognizance of item 3 because it was not a court of equity jurisdiction, and, therefore, could not proceed to adjust the accounts any further than it had adjusted them. One object of the act was to remedy this defect. There is nothing in the use of the words 'for alleged labor done and materials furnished,' or of the words 'to that end,' which can limit or control the scope of the act, as above explained. That scope is still further shown by the enactment that the court 'may, if according to the rules and principles of equity jurisprudence, in its judicial discretion, reform said contract and render such judgments as justice and right between the claimants and the said government may require.' The words 'for alleged labor done and materials furnished' are, in view of the language of the entire act, not words of limitation, but words of description. The court is authorized to adjust 'the accounts' between the parties, so far as they were not legal demands, and so far as they were equitable demands, unadjusted or unadjudicated, growing out of the contract, as a court of equity, and, for that purpose, to reform the contract, according to the principles of equity, and then render judgment upon it as reformed. This power of the Court of Claims, under the act, extends to reforming the contract in respect to permitting the officers of the United States to materially vary the plans for the piers so as to essentially change the obligations of the parties.

As to items 3 and 4 in the new petition, which are the same as items 7 and 8 in the former case, not only were they legal demands, but they were adjudicated upon fully in that case and cannot be reopened. As to items 5, 6, and 7 in the new petition, they cannot, in view of the principles laid down in this opinion, be considered by the Court of Claims. The question of interest, under item 8, remains for that court to consider.

It is contended on the part of the United States that this court cannot, under its rules, hear this appeal, because there is not, in the record, any finding by the Court of Claims of the facts in the case, in the nature of a special verdict, with a separate statement of the conclusions of law upon such facts. But the rule in regard to findings of fact has no reference to a case like the present, of equity jurisdiction conferred in a special case by a special act; and, in such a case, where an appeal lies and is taken under sect. 707 of the Revised Statutes, this court must review the facts and the law as in other cases in equity, appealed from other courts.

Judgment and decree reversed, and the case is remanded with directions to proceed in it according to law and in conformity with the opinion of this court.


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 admitted, but that the sensorium, in men at least, ought to be placed in the internal parts of the brain.

. V. It is of the utmost consequence to morality and religion, that the affections and passions should be analysed into their simple compounding parts, by reversing the steps of the associations which concur to form them. For thus we may learn how to cherish and improve good ones, check and root out such as are mischievous and immoral, and how suit our manner of life, in some tolerable measure, to our intellectual and religious wants. And as this holds, in respect of persons of all ages, so it is particularly true, and worthy of consideration, in respect of children and youth. The world is, indeed, sufficiently stocked with general precepts for this purpose, grounded on experience; and whosoever will follow these faithfully, may expect good general success. However, the doctrine of association, when traced up to the first rudiments of understanding and affection, unfolds such a scene as cannot fail both to instruct and alarm all such as have any degree of interested concern for themselves, or of a benevolent one for others. It ought to be added here, that the doctrine of association explains also the rise and progress of those voluntary and semi-voluntary powers, which we exert over our ideas, affections, and bodily motions (as I shall shew hereafter, Prop. XXI.) and by doing this, teaches us how to regulate and improve these powers.

. VI. If beings of the same nature, but whose affections and passions are, at present, in different proportions to each other, be exposed for an indefinite time to the same impressions and associations, all their particular differences will, at last, be overruled, and they will become perfectly similar, or even equal. They may also be made perfectly similar, in a finite time, by a proper adjustment of the impressions and associations.

. VII. Our original bodily make, and the impressions and associations which affect us in passing through life, are so much alike, and yet not the same, that there must be both a great general resemblance amongst mankind, in respect to their intellectual affections, and also many particular differences.

. VIII. Some degree of spirituality is the necessary consequence of passing through life. The sensible pleasures and pains must be transferred by association more and more every day, upon things that afford neither sensible pleasure nor sensible pain in themselves, and so beget the intellectual pleasures and pains.

. IX. Let the letters a, b, c, d, e, &c. represent the sensible pleasures; x, y, and z, the sensible pains, supposed to be only three in number; and let us suppose all these, both pleasures and pains, to be equal to one another: If now the ideas of these sensible pleasures and pains be associated together, according to all the possible varieties, in order to form intellectual pleasures and pains, it is plain, that pleasure must prevail in all the

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title: Page:Observations on Man 1834.djvu/86


text: Talk:Harvey v. United States (105 U.S. 671)/Opinion of the Court


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 combinations of seven or more letters; and also, that when the several parts of these complex pleasures are sufficiently united by association, the pains which enter their composition will no longer be distinguished separately, but the resulting mixed and complex pleasures appear to be pure and simple ones, equal in quantity to the excess of pleasure above pain, in each combination. Thus association would convert a state in which pleasure and pain were both perceived by turns, into one in which pure pleasure alone would be perceived; at least, would cause the beings who were under its influence to an indefinite degree, to approach to this last state nearer than by any definite difference. Or, in other words, association, under the supposition of this corollary, has a tendency to reduce the state of those who have eaten of the tree of the knowledge of good and evil, back again to a paradisiacal one. Now, though the circumstances of mankind are not the same with those supposed in this corollary, yet they bear a remarkable resemblance thereto, during that part of our existence which is exposed to our observation. For our sensible pleasures are far more numerous than our sensible pains; and though the pains be, in general, greater than the pleasures, yet the sum total of these seems to be greater than that of those; whence the remainder, after the destruction of the pains by the opposite and equal pleasures, will be pure pleasure.

. X. The intellectual pleasures and pains are as real as the sensible ones, being, as we have seen, nothing but the sensible ones variously mixed and compounded together. The intellectual pleasures and pains are also all equally of a factitious and acquired nature. We must therefore estimate all our pleasures equally, by their magnitude, permanency, and tendency to procure others; and our pains in like manner.

. XI. The sensible pleasures and pains have a greater tendency to destroy the body, than the intellectual ones; for they are of a particular local nature, and so bear hard upon the organs which convey them. But the destruction of any one considerable part of the body is the destruction of the whole, from the sympathy of the parts; whereas the intellectual pleasures and pains, being collected from all quarters, do not much injure any organ particularly, but rather bring on an equable gradual decay of the whole medullary substance, and all the parts thereon depending.

. XII. This proposition, and its corollaries, afford some pleasing presumptions; such are, that we have a power of suiting our frame of mind to our circumstances, of correcting what is amiss, and improving what is right: that our ultimate happiness appears to be of a spiritual, not corporeal nature; and therefore that death, or the shaking off the gross body, may not stop our progress, but rather render us more expedite in the pursuit of our true end: that association tends to make us all ultimately similar; so that if one be happy, all must: and lastly, that the

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Swift Company v. United States (105 U.S. 691)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. George H. Williams for the appellant.

The Solicitor-General for the United States.

MR. JUSTICE MATTHEWS delivered the opinion of the court.


text: Talk:Swift Company v. United States (105 U.S. 691)


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Swift Company v. United States (105 U.S. 691)/Opinion of the Court

The Swift and Courtney and Beecher Company filed its petition Jan. 20, 1879, in the Court of Claims, for the recovery of certain commissions alleged to be due to it on purchases of proprietary stamps under the internal revenue laws.

It alleged that it was, during the period covered by the transactions set out, the proprietor, manufacturer, and vendor of friction-matches; that, as such, at the beginning of its business, it furnished to the Commissioner of Internal Revenue its own die for stamps, to be used especially for its own proprietary articles; that, during said period, from time to time, and continuously on different days of each and every month, it sent to him sums of money from $1,000 to $10,000 as suited its convenience, and that he transmitted to it stamps, as it needed and ordered; so that in the account between it and him as to its stamps the creditor side showed moneys received by him in certain sums and at certain dates, but showed the receipt of no sum less than $1,000, and the debtor side of said account showed that stamps were sent by him to it in different sums and at different dates, but never in amounts less than $1,000.

It is further averred that upon the whole amount of stamps purchased, during the period referred to, the company was entitled to a commission of ten per cent in money, amounting to $389,720.40, which he has refused to allow; and has allowed in lieu thereof $354,291.27 in stamps at their face value; insisting such to be the long-established practice of the office, to which he must adhere, till changed by legislation or judicial decision. The company, in the petition, in reference to this practice, avers 'that the allowances made to it from time to time between May 6, 1870, and Dec. 24, 1878, have been in accordance with the uniform practice of said internal revenue office from its organization, but petitioner avers that at different times prior to 1866 protests were made to the Commissioner of Internal Revenue by and on behalf of the manufacturers of friction-matches against such a construction of the statute by him, by which only ten per cent commissions in stamps at their face value were allowed by him upon the amount of money paid by the purchasers, instead of ten per cent upon the whole amount of stamps purchased, and that such facts are and have always been known to petitioner.' It is also averred that the company gave the required security for a credit of sixty days upon its purchase of stamps, as provided for in the act of June 30, 1864, c. 173 (13 Stat. 218, 295), which enacts, 'That the Commissioner of Internal Revenue may from time to time furnish, supply, and deliver to any manufacturer of friction or other matches, cigar lights, or wax tapers, a suitable quantity of adhesive or other stamps, such as may be prescribed for use in such cases, without pre-payment therefor, on a crei t not exceeding sixty days, requiring in advance such security as may be judged necessary to secure payment therefor, to the Treasurer of the United States within the time prescribed for such payment.'

The defendant filed a general demurrer, which was sustained, and judgment rendered dismissing the petition. To review this judgment the present appeal is prosecuted by the company.

Section 102 of the act of July 1, 1862, c. 119 (12 Stat. 477), authorized the Commissioner of Internal Revenue to sell to and supply collectors, deputy collectors, postmasters, stationers, or any other persons, at his discretion, with adhesive stamps, upon the payment at the time of delivery of the amount of duties said stamps represent, and thereupon to allow and deduct from the aggregate amount of such stamps the sum of not exceeding five per cent as commission, with the proviso, 'that any proprietor or proprietors of articles named in schedule C, who shall furnish his or their own die or design for stamps, to be used especially for his or their own proprietary articles, shall be allowed the following discount, namely: on amounts purchased at one time of not less than fifty nor more than five hundred dollars, five per centum; on amounts over five hundred dollars, ten per centum.'

By the act of March 3, 1863, c. 74 (12 Stat. 714), the word 'commission' was substituted for 'discount' in this proviso.

This section as thus amended was re-enacted as sect. 161 of the act of June 30, 1864, c. 173 (13 Stat. 294), and schedule C enlarged so as to include friction-matches. p. 302.

Section 4 of the act of July 14, 1870, c. 255 (16 Stat. 257), continued in force the same provision, directing that proprietors of articles named in schedule C, who shall furnish their own dies, shall be allowed commissions, on amounts over five hundred dollars, 'ten per centum on the whole amount purchased.'

It will be perceived, on examining this legislation, that while, in respect to adhesive stamps sold, other than those to proprietors of articles named in schedule C from their own dies for their own use, the rate of the commission to be allowed to the purchaser shall not exceed five per cent, but within that limit, is subject to the discretion of the Commissioner of Internal Revenue; while, in respect to those of the latter class, including stamps on friction-matches, the rate is fixed by the statute itself, and in the form as expressed in the act of 1870, where the amounts of purchases are over $500, the commissions are established at ten per cent on the whole amount purchased. So that, while in the sale of adhesive stamps of the former description, in the exercise of his discretion as to the rate, he might lawfully provide that the commissions should be paid only in stamps at their face value, yet, in the sale of stamps to proprietors of friction-matches, he was not authorized to diminish the commission by any such regulation, but was required to allow and pay in money ten per cent calculated on the amount of stamps purchased on all sales exceeding $500 in amount.

In the present case the commissions were allowed to the company not on the whole amount of stamps furnished to it, nor in money, but in stamps at their face value, calculated on the amount of money paid by it. This suit was brought to recover the difference between the amounts, resulting from these two modes of calculating and allowing commissions.

There is no serious question raised as to the proper construction of the internal revenue acts upon the point, it being virtually admitted that the contention on the part of the appellant upon the provisions of the statutes is correct.

It is met, however, in the opinion of the Court of Claims, and in argument on behalf of the government here, that the contrary construction, to pay these commissions in stamps at their face value, has been acted upon by the Commissioner of Internal Revenue from the beginning; has been acquiesced in by purchasers and dealers; and has never been changed by Congress; and as an official practice has thus acquired the force of law; or if not, then, at least, it was a course of dealing, well known to the appellant, and acquiesced in, by which it accepted stamps at their face value in payment of its commissions, which it is not at liberty now to open, question, and reverse.

The right construction of the internal revenue acts, upon the point of the allowance of commissions to dealers in proprietary articles, purchasing stamps made from their own dies, and for their own use, is too clear to bring the case within the first alternative. The rule which gives determining weight to contemporaneous construction, put upon a statute, by those charged with its execution, applies only in cases of ambiguity and doubt. Edwards's Lessee v. Darby, 12 Wheat. 206; Smythe v. Fiske, 23 Wall. 374; United States v. Moore, 95 U.S. 760; United States v. Pugh, 99 id. 265.

We are of opinion that the averments of the petition, admitted by the demurrer, do not bring it within the operation of the principle invoked in the second alternative. The case made by the petition is not that of successive and independent purchases of stamps, settled for, at the time, when the commissions given by the law were paid by the commissioner, the purchaser voluntarily accepting payment, not in money, but in other stamps; and new dealings, of the same character, but separate as to each instance, had, afterwards, upon the same footing and by mutual understanding. On the contrary, the business was conducted upon the footing of a running account. Money was paid on account of stamps furnished or to be furnished, in sums, differing in amount, but not less in any case than $500; and stamps were supplied in varying quantities, as ordered, without reference to corresponding and equivalent payments of cash; a bond with satisfactory security, in pursuance of law, having been given and accepted, to secure the government against loss, in consequence of purchases on credit. The dealing is, undoubtedly, evidence that the appellant was willing to purchase stamps, to be paid for by a credit on account, in lieu of cash for commissions; but it does not prove that he was willing to waive his right to a commission upon the stamps so purchased. And it would be incumbent on the government, in order to deprive him of his statutory right, not only to show facts, from which an agreement to do so might be inferred, but an actual settlement based upon such an understanding. The allegations in the petition, in our opinion, do not constitute such a bar to the recovery sought, and the demurrer interposed should not, therefore, have been sustained.

For this error, the judgment of the Court of Claims will be reversed, and the cause remanded for further proceedings in accordance with law; and it is

So ordered.


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 same association may also be shewn to contribute to introduce pure ultimate spiritual happiness, in all, by a direct argument, as well as by the just-mentioned indirect one.

first, Sensation, the perception of ideas, and a locomotive faculty, i.e. muscular motion, are the three most eminent marks of distinction between the animal and vegetable world: therefore, since it is already found that the two first are performed by the same means, i.e. vibrations, there is some presumption that the last will not require a different one.

Secondly, Of the two sorts of motion, viz. automatic and voluntary, the first depends upon sensation, the last upon ideas, as I shall shew particularly hereafter, and may appear, in general, to any one, upon a slight attention; whence it follows, that sensation, and automatic motion, must be performed in the same general manner, also the perception of ideas, and voluntary motion: and therefore, since sensation and perception, the two antecedents, agree in their causes, automatic and voluntary motion, the two consequents, i.e. all the four, must likewise.

Thirdly, It appears from the first and second propositions, that the white medullary substance is the common instrument of sensation, ideas, and motion; and by the fifth, that this substance is uniform and continuous every where. Hence it follows, that the subtle motions excited in the sensory nerves and medullary substance of the brain, during sensation and intellectual perception, must, of whatever kind they be, pass into the motory nerves; and when they are arrived there, it is probable that they must cause the contraction of the muscles, both because otherwise their arrival at the motory nerves would be superfluous, and because some such subtle motions are required for this purpose.

. I. All arguments, therefore, which prove the performance of sensation and intellectual perception, by means of vibrations of the small medullary particles, must infer, that muscular motion

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Ex Parte Mason

PETITION for a writ of habeas corpus and a certiorari.

The case is stated in the opinion of the court.

Mr. James M. Lyddy for the petitioner.

Mr. Asa Bird Gardner, contra.

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

title: Ex Parte Mason


text: Talk:Ex Parte Mason

title: Talk:Ex Parte Mason


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Ex Parte Mason/Opinion of the Court

This is a petition for a writ of habeas corpus to release John A. Mason, the petitioner, from confinement in the Albany penitentiary under a sentence by a general court-martial. The facts are these: Mason was a sergeant in Battery B of the Second Regiment of Artillery, in the army of the United States. He was tried by a general court-martial on the charge of violating the sixty-second Article of War, in that 'having been ordered with his battery from Washington Barracks for guard duty at the United States jail, in the city of Washington, D. C., and having arrived at said jail for said duty,' he 'did thereupon, with intent to kill Charles J. Guiteau, a prisoner then confined under the authority of the United States in said jail, wilfully and maliciously discharge his musket, loaded with ball-cartridge, at said Guiteau, through a window of said jail, ino a cell then occupied by the said Guiteau.' Upon a trial duly had he was found guilty of the charge according to the specification, and sentenced 'to be dishonorably discharged from the service of the United States, with the loss of all pay and allowances. . . due and to become due to him, and then to be confined at hard labor in such penitentiary as the proper authorities may direct for eight years.' The Albany penitentiary was designated in due from as the place of confinement under this sentence.

A question which presents itself at the outset is whether this court has jurisdiction to issue such a writ as is asked, inasmuch as it has no power to review the judgments of courts-martial. Upon this question there is not entire unanimity of opinion among the members of the court, and we purposely withhold any decision at this time in respect to it. We all agree, however, that if a writ might issue, there could be no discharge under it if the court-martial had jurisdiction to try the offender for the offence with which he was charged, and the sentence was one which the court could, under the law, pronounce.

The sixty-second Article of War, under which Mason was tried, is as follows:--

'All crimes not capital, and all disorders and neglects,     which officers and soldiers may be guilty of, to the      prejudice of good order and military discipline, though not      mentioned in the foregoing Articles of War, are to be taken      cognizance of by a general, or a regimental, garrison, or field officers' court-martial,      according to the nature and degree of the offence, and      punished at the discretion of the court.'

The offence charged in this case was clearly one to the prejudice of good order and military discipline.

The offender was a soldier in the army of the United States. As such, according to the specifications of the charge made against him, he was ordered on guard duty at the United States jail, in Washington, and while on duty he wilfully and maliciously discharged his musket, with intent to kill a prisoner confined in the jail under the authority of the United States. The gravamen of the military offence is that, while standing guard as a soldier over a jail in which a prisoner was confined, the accused wilfully and maliciously attempted to kill the prisoner. Shooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline. While the prisoner who was shot at was not himself connected with the military service, the soldier who fired the shot was on military duty at the time, and the shooting was in direct violation of the orders under which he was acting. It follows that the crime charged, and for which the trial was had, was not simply an assault with intent to kill, but an assault by a soldier on duty with intent to kill a prisoner confined in a jail over which he was standing guard.

In our opinion the fifty-eight and fifty-ninth Articles of War have no application to the case. The fifty-eighth is as follows:--

'In time of war, insurrection, or rebellion, larceny,     robbery, burglary, arson, mayhem, manslaughter, murder,      assault and battery with an intent to kill, wounding, by      shooting or stabbing, with intent to commit murder, rape, or      assault and battery with an intent to commit rape, shall be      punishable by the sentence of a general court-martial, when      committed by persons in the military service of the United      States, and the punishment in any such case shall not be less      than the punishment provided for the like offence by the laws      of the State, Territory, or District in which such offence      may have been committed.' The object and purpose of this article were elaborately considered in Coleman v. Tennessee, 97 U.S. 509. As it is to operate only in time of war, it neither adds to nor takes from the powers which courts-martial have under the sixty-second article in time of peace.

Article 59 is as follows:--

'When any officer or soldier is accused of a capital crime,     or of any offence against the person or property of any      citizen of the United States, which is punishable by the laws      of the land, the commanding officer, and the officers of the      regiment, troop, battery, company, or detachment, to which      the person so accused belongs, are required, except in time      of war, upon application duly made by or on behalf of the      party injured, to use their utmost endeavors to deliver him      over to the civil magistrate, and to aid the officers of      justice in apprehending and securing him, in order to bring      him to trial. If, upon such application, any officer refuses     or wilfully neglects, except in time of war, to deliver over      such accused person to the civil magistrates, or to aid the      officers of justice in apprehending him, he shall be      dismissed from the service.'

It is not pretended that any application was ever made under this article for the surrender of Mason to the civil authorities for trial. So far as appears, the person injured by the offence committed was satisfied to have the offender dealt with by the military tribunals. The choice of the tribunal by which he is to be tried has not been given to the offender. He has offended both against the civil and the military law. As the proper steps were not taken to have him proceeded against by the civil authorities, it was the clear duty of the military to bring him to trial under that jurisdiction. Whether, after trial by the court-martial, he can be again tried in the civil courts is a question we need not now consider. It is enough if the court-martial had jurisdiction to proceed, and what has been done is within the powers of that jurisdiction.

It is objected that the sentence is in excess of what the law allows. The ninety-seventh Article of War is as follows:--

'No person in the military service shall, under the sentence     of a court-martial, be punished by confinement in a      penitentiary, unless the offence of which he may be convicted      would, by some statute of the United States or by some      statute of the State, Territory, or District in which such offence may be committed, or by the      common law, as the same exists in such State, Territory, or      District, subject such convict to such imprisonment.'

Under this article, when the offence is one not recognized by the laws regulating civil society, there can be no punishment by confinement in a penitentiary. The same is true when the offence, though recognized by the civil authorities, is not punishable by the civil courts in that way. But when the act charged as 'conduct to the prejudice of good order and military discipline' is actually as crime against society which is punishable by imprisonment in the penitentiary, it seems to us clear that a court-martial is authorized to inflict that kind of punishment. The act done is a civil crime, and the trial is for that act. The proceedings are had in a court-martial because the offender is personally amenable to that jurisdiction, and what he did was not only criminal according to the laws of the land, but prejudicial to the good order and discipline of the army to which he belonged. The sixty-second article provides that the offender, when convicted, shall be punished at the discretion of the court, and the ninety-seventh article does no more than prohibit the court from sentencing him to imprisonment in a penitentiary in a case where, if he were tried for the same act in the civil courts, such imprisonment could not be inflicted.

It is also claimed that the sentence is in excess of the jurisdiction of the court, because in addition to imprisonment in the pentitentiary for the full term allowed by the laws of the District of Columbia for the offence of an assault with intent to kill, it subjects the offender to a dishonmorable discharge from the army and a forfeiture of his pay and allowances. As has already been said, under the sixty-second article the punishment is to be at the discretion of the court. The ninety-seventh article only limits this discretion as to imr isonment in the penitentiary, and it has been nowhere provided that the punishment may not in other respects be greater than the civil courts could inflict.

'Cases arising in the land or naval forces' are expressly excepted from the operation of the Fifth Amendment of the Constitution, which provides that 'no person shall be held to answer a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.' The limitation as to 'actual service in time of war or public danger' relates only to the militia. Dynes v. Hoover, 20 How. 65.

Petition denied.

title: Ex Parte Mason/Opinion of the Court


text: Talk:Ex Parte Mason/Opinion of the Court


text:
Wurts v. Hoagland Iron Company

RULE to show cause why an attachment should not issue against the defendant in error, for having sued out executions upon the judgments below after supersedeas bonds in due form and approved security had been filed within the prescribed time.

Mr. Theodore Little in support of the rule.

Mr. Jehiel G. Shipman, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Wurts v. Hoagland Iron Company


text: Talk:Wurts v. Hoagland Iron Company

title: Talk:Wurts v. Hoagland Iron Company


text:
Wurts v. Hoagland Iron Company/Opinion of the Court

The controversy in these cases arose out of an assessment of benefits for the drainage of lands in New Jersey. It was decided by the Supreme Court of that State, Dec. 1, 1880. The Court of Errors and Appeals affirmed the judgment on the 18th of July, 1881, and the record was remitted Aug. 31, 1881. On receiving the remittitur on that day, the Supreme Court entered a rule ordering it to be filed and the cause to be proceeded with according to law. Writs of error from this court to the Supreme Court of New Jersey were allowed and bonds approved Oct. 27, 1881, and on the following day were filed in the clerk's office of the latter court. The writs of error were properly directed to the Supreme Court, because at that time the record had been transmitted to it, and was then in its possession. See Atherton v. Fowler, 91 U.S. 143, 148. But at any time before the remittitur the writs might have been directed to the Court of Errors and Appeals, because the judgment of that court was the final judgment in the cause, and until the remittitur was made it had possession of the record in contemplation of law. It is that judgment which is the subject of revision here. The plaintiff in error insists that the action of the Supreme Court, on receiving the remittitur, was the final judgment. But this is not correct. Such action was not necessary to the jurisdiction of this court. A number of instances might be cited in which, without any remittitur, a writ of error from this court has been directed to the Court of Errors and Appeals of New Jersey. This was the course in the noted cases of State of New Jersey v. Wilson, 7 Cranch, 164; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; and New Jersey v. Yard, 95 U.S. 104.

In those States where the highest court does not have possession of the record, and does not render a judgment, but decides questions certified by the inferior courts, and merely issues a rescript directing the latter what judgment to render, the case would perhaps be different. But in New Jersey the record itself, or a transcript which stands for the record, is removed to the Court of Errors and Appeals, and a regular judgment is there rendered. For certain purposes, as in England on writs of error from the House of Lords, the judgment of the inferior court pending proceeding in error is supposed to be in existence. Action upon it may be brought, and, on failure to give proper bail in error, execution may be issued. But for all other purposes, when a writ of error goes to an inferior court, the Court of Errors and Appeals obtains possession of the cause and renders a formal judgment therein. If the judgment of the inferior court is reversed, the Court of Errors usually renders such judgment as ought to have been rendered, though it has the power to direct the court below what judgment to give. It is only necessary to open a book of New Jersey reports, containing decisions of the highest court, to ascertain its jurisdiction in this behalf. Thus, in 2d Zabris kie, 623, is a judgment in the case of Demarest v. Hopper, reversing the judgment of the Supreme Court in an action of ejectment, and rendering judgment for the plaintiff; and in the same book, p. 725, is another judgment of reversal in the case of Hopper v. Hopper, coupled with a judgment for the demandant in an action of dower, with a direction to the Supreme Court to award a writ of inquiry to assess the damages, and to issue execution therefor.

We think that the final judgment in these cases was rendered on the eighteenth day of July, 1881, being the judgment rendered by the Court of Errors and Appeals; and that as the writs of error were not issued and served until the 28th of October, more than sixty days thereafter, they were too late to operate as a supersedeas. The rules to show cause must therefore be

Discharged.


text: Talk:Wurts v. Hoagland Iron Company/Opinion of the Court


text:
Stevenson v. Texas Railway Company

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

The facts are stated in the opinion of the court.

Mr. William S. Herndon and Mr. Anthony Q. Keasbey for the appellant.

Mr. Walter D. Davidge and Mr. James Lowndes for the appellee.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Stevenson v. Texas Railway Company


text: Talk:Stevenson v. Texas Railway Company

title: Talk:Stevenson v. Texas Railway Company


text:
Stevenson v. Texas Railway Company/Opinion of the Court

In the view which we have taken of this case, it becomes necessary to decide but a single question. The facts necessary to its determination may be summed up as follows:--

The Texas and Pacific Railway Company is a corporation created by acts of Congress, for the purpose of constructing, maintaining, and operating a line of railway, from a point at or near Marshall in Harrison County, Texas, by way of El Paso, to the Pacific Ocean. By the terms of its charter, it was authorized to purchase the stock, land grants, franchises, and appurtenances of, and, on such terms as might be agreed on, consolidate with, any railroad companies theretofore chartered by congressional, State, or territorial authority, on the route prescribed, but not with any competing company; and thereupon all such interests and rights should vest in the Texas and Pacific Railway Company, the latter assuming any indebtedness of such companies, as they might agree, and the consolidation and purchase not impairing any lien which might exist thereon.

The Southern Pacific Railroad Company was a corporation of the State of Texas, and, being thereunto duly authorized, became consolidated with the Texas and Pacific Railway Company, on March 21, 1872, the latter becoming thereby the purchaser, in consideration of $3,000,000 paid to the former, of all its property, rights, and franchises.

The Southern Pacific Railroad Company, which made this sale to, and became consolidated with, the Texas and Pacific Railway Company, was the successor in law of the Texas Western Railroad Company, in the following manner: The original company was chartered in 1852 to construct a railroad from a suitable point on the eastern boundary of the State to El Paso on the Rio Grande. In 1856, its name was changed by the legislature of Texas to that of the Southern Pacific Railroad Company. Prior to September, 1859, this company had completed twenty-five miles of road west from Marshall, and had earned, it is claimed, about 256,000 acres of land, granted to it by the State. Having become insolvent, it was sold under execution upon a judgment at law, on Sept. 6, 1859, to R. V. Richardson, under the provisions of the fifth section of the act of Feb. 7, 1853, Paschal's Digest, art. 4912, which is as follows:--

'The road-bed, track, franchise, and chartered rights and     privileges of any railroad company in this State, shall be      subject to the payment of the debts and legal liabilities of      said company, and may be sold in satisfaction of the same; but the said road-bed,      track, franchise, and chartered pw ers and privileges shall      be deemed an entire thing, and must be sold as such; and in      case of the sale of the same, whether by virtue of an      execution, order of sale, deed of trust, or any other power,      the purchaser or purchasers at such sale, and their      associates, shall be entitled to have and exercise all the      powers, privileges, and franchises granted to said company by      its charter, or by virtue of the general laws of the State;      and the said purchaser or purchasers, and their associates,      shall be deemed and taken to be the true owners of said      charter and corporators under the same, and vested with all      the powers, rights, privileges, and benefits thereof, in the      same manner and to the same extent as if they were the      original corporators of said company; and shall have power to      construct, complete, equip, and work the road, upon the same      terms and under the same conditions and restrictions as are      imposed by their charter and the general laws of this State.'

As authorized by this law, Richardson and his associates reorganized the Southern Pacific Railroad Company by the creation of a new capital stock,-the largest part of which was subscribed and owned by Richardson himself and Jeptha Fowlkes,-and the election of a board of directors and officers, as provided by their by-laws, on Oct. 3, 1859.

On Aug. 25, 1860, the Southern Pacific Railroad Company, as thus reorganized, executed to R. V. Richardson and Vernon K. Stevenson, as trustees, two mortgages, which were acknowledged Sept. 10, and proved in New York before a Texas commissioner Sept. 12, 1860, and recorded in Harrison County, Texas, March 1, 1861. One of them was to secure a proposed issue of bonds, to the amount of $25,000,000, for purposes of construction and other necessary expenses, payable Jan. 1, 1883, with interest at the rate of seven per cent per annum, and it embraced all the property of the company, including its land grant from the State. The other covers one million acres of the land grant, to be selected by the company for sale, to meet the accruing interest on the same bonds.

The complainants claim to be holders for value of about two hundred of the bonds secured by these mortgages, out of about three hundred and fifty, which was the whole number issued. Their bills were filed for the foreclosure of the mortgages, and the sale of the mortgaged property, for the payment of the amount due on account of the bonds and accrued interest.

Against the lien of these mortgages the appellee, the Texas and Pacific Railway Company, claims a paramounts title. This title rests, primarily, upon a judicial sale of the same property and rights, then vested in the Southern Pacific Railroad Company, as it existed under the Richardson reorganization. The sale was made by the sheriff of Harrison County, Texas, on Sept. 3, 1861, to H. S. Fulkerson, of the whole road and franchises of the company, as an entirety, under the provisions of the foregoing article 4912, upon executions levied under four judgments at law, as follows:--

1. Judgment in favor of J. W. Saunders, April 6, 1859, for $300.09 and costs, $74, in all $374.09, upon which was credited before sale $277, leaving due a balance of $97.09. Execution was levied under this judgment Aug. 9, 1860.

2. Judgment in favor of Henry Wickland, Sept. 26, 1860, for $3,500 and costs. Execution issued and levied July 11, 1861.

3. Judgment in favor of Amelia Swanson, Oct. 27, 1860, for $2,480.50 and costs. Execution issued Nov. 22, 1860, levied Jan. 3, 1861.

4. Judgment in favor of J. B. Williamson, Oct. 23, 1860, for $1,000 and costs. Execution issued Nov. 23, 1860, levied Jan. 3, 1861.

The purchase-money at the sheriff's sale to Fulkerson was $7,500, which was just enough to satisfy the executions.

It will be observed that of these judgments the first alone was recovered prior to the date of the execution and delivery of the mortgages, but all of them were recovered, and the executions issued upon the first, third, and fourth were levied before March 1, 1861, the date of the record of the mortgages.

There is neither judgment, claim, nor proof that at the time of the levy of these executions the plaintiffs had any notice of the existence of the then unrecorded mortgages to Richardson and Stevenson; and it is conclusively established as the law of Texas that the purchaser at such sale acquires a title superior to that of such mortgages.

Article 1988, Paschal's Digest, reads as follows: 'All bargains, sales, and other conveyances whatever, of any lands, tenements, and hereditaments, whether they may be made for passing any estate of freehold or inheritance, or for a term of years; and deeds of settlement upon marriage, whether land, slaves, money, or other personal thing, shall be settled or covenanted to be left or paid, at the death of the party or otherwise; and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and lodged with the clerk, to be recorded according to the directions of this act, but the same, as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall nevertheless be valid and binding.'

And art. 4994, Paschal's Digest, provides that 'Every conveyance, covenant, agreement, deed, deed of trust, or mortgage in this act mentioned, which shall be acknowledged, proved, or certified according to law, and delivered to the clerk of the proper court to be recorded, shall take effect and be valid, as to all subsequent purchasers, from the time when such instrument shall be so acknowledged, proved, or certified, and delivered to such clerk to be recorded, and from that time only.'

These statutory provisions were construed by the Supreme Court of Texas in the case of Grace v. Wade, 45 Tex. 522. In that case the only question was 'whether a vendee of land, who claims title by an unrecorded deed or bond for title, or the purchaser, with notice of such deed or bond, at execution sale on a judgment against the vendor, where the creditor has no notice of the title or claim of the vendee, at the date of the levy of the execution, has the better title.' The court affirmed the two propositions, that the lien acquired by a creditor without notice by the judgment and levy of execution is superior to the unrecorded deed of the vendee, and that a purchaser under the execution, with notice, is entitled to all the rights of the creditor. The court said: 'Now, if the unrecorded instrument cannot take effect, but is void as to creditors, it is absurd to say that the creditor's lien does not bind the land to which it applies, or that it cannot be enforced by the sale of the land so bound by it for the payment of the debt, just as if no such instrument existed. And it would be equally as absurd to say that the right acquired by the creditor by his lien, not merely to purchase himself, but to have the land sold in open market, when once secured, can be taken away by the subsequent record of such instrument, or that the party holding such lien can, by subsequent notice, be precluded from the full benefit of his lien for the satisfaction and discharge of his demand, except by becoming himself the purchaser.'

The case of Price v. Cole (35 Tex. 461), to the contrary, is directly overruled, the court saying: 'We conclude by saying, that while the judgment in Price v. Cole is not warranted by the previous decisions in our own courts or elsewhere, and must therefore be overruled, we adhere to and sustain the doctrine to be deduced from the case of Ayres v. Duprey (27 Texas, 593), that one who purchases at sheriff's sale may claim protection under the statute as a purchaser, even when the judgment creditor himself is not, as creditor, within its protection, and vice versa. While he cannot bring himself within its provisions in the character of a purchaser, he or others subrogated to his rights may be entite d to its protection as creditor.'

This decision has been followed and approved in Grimes v. Hobson, 46 Tex. 416; Catlin v. Bennatt, 47 id. 165; and Mainwarring v. Templeman, 51 id. 205; and we adopt it as the law of Texas applicable to and governing the present case.

It follows that the legal title of the Texas and Pacific Railway Company, derived through its purchase from and consolidation with the Southern Pacific Railroad Company, which duly succeeded to the title of Fulkerson, is superior to that of the mortgages under and through which the appellants claim as holders of the bonds. It is urged, however, on behalf of the appellants, that the circumstances of the execution sale to Fulkerson were such as to fasten upon him a constructive trust in their favor as creditors of the company; but, in our opinion, if that were conceded, there is no ground apparent on the record upon which that equity could be successfully asserted against the Texas and Pacific Railway Company, a purchaser for valuable consideration, having notice, it may be, of the existence of the mortgages to Richardson and Stevenson, but without notice of any facts which in equity would subordinate to them the rights acquired by the sheriff's sale to Fulkerson.

For these reasons the decree of the Circuit Court is

Affirmed.


text: Talk:Stevenson v. Texas Railway Company/Opinion of the Court


text:
Marsh v. McPherson

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

The case is stated in the opinion of the court.

Mr. Jefferson H. Broady for the plaintiffs in error.

Mr. John L. Webster for the defendant in error.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Marsh v. McPherson


text: Talk:Marsh v. McPherson

title: Talk:Marsh v. McPherson