text:
Hawkins v. United States (96 U.S. 689)/Opinion of the Court

Verbal agreements between the parties to a written contract, made before or at the time of the execution of the contract, are in general inadmissible to vary its terms or to affect its construction, the rule being that all such verbal agreements are to be considered as merged in the written instrument. But oral agreements subsequently made, on a new and valuable consideration, and before the breach of the contract, in cases not falling within the Statute to Frauds, stand pon a different footing; as such agreements may, if not within the Statute of Frauds, have the effect to enlarge the time of performance, or may vary any other of its terms, or may waive and discharge it altogether. Emerson v. Slater, 22 How. 28; Goss v. Nugent, 5 Barn. & Ad. 58; Nelson v. Boynton, 3 Met. (Mass.) 396; Harvey v. Grabham, 5 Ad. & E. 61; Leonard v. Vredenburgh, 8 Johns. (N. Y.) 28; Chitty, Contr. (10th ed.) 105.

Authority was conferred upon the Secretary of the Treasury, by the act of the 10th of June, 1872; and he was therein directed to cause to be erected a suitable building at Raleigh, North Carolina, for the use and accommodation of the courts of the United States, post-office, and other offices of the government, with fire-proof vaults extending to each story of the building. 17 Stat. 390.

Pursuant to that authority, the contract in question was made by the superintendent appointed for the purpose, with the plaintiff, to furnish and deliver, on the site for the building, one thousand cubic yards, more or less, of rubble-stone, on his bid for the same; it being covenanted and agreed between the parties that the 'contract shall be valid and binding when approved by the Secretary of the Treasury, and not otherwise, and that no departure from its conditions shall be made with out his written consent.'

By the terms of the contract, the rubble-stone was to be in every way equal to the sample furnished with his bid: one-quarter to be bond-stones, of a length equal to the thickness of the walls, and to contain not less than ten cubic feet; and no stone to contain less than one and one-half cubic feet, or to be less than twelve inches thick, to be delivered at such times and in such quantities as may be deemed necessary by the superintendent. Monthly payments were to be made, as the work progressed, for ninety per cent of the stone delivered, at five dollars per cubic yard; it being stipulated that ten per cent should be retained until the completion of the contract and the approval and acceptance of the same by the superintendent.

Leave to amend having been granted, the petitioner enlarged his charge for work done, and claimed that there was a balance due to him of $8,962.50, after deducting cash paid, and the rubble-stone quarried and rejected before it was shipped. Hearing was had, and the court rendered judgment for the plaintiff in the sum of $1,566.50, as appears by the transcript. Immediate appeal was taken to this court by the plaintiff; and he assigned the errors following: 1. That the court below erred in the measure of damages which they adopted in the case. 2. That the court erred in not holding that the claimant is entitled to recover the fair value of the material delivered and accepted, without regard to the price prescribed by the contract. 3. That the court should have computed the stone furnished as nine hundred and fifty-eight and three-fourths cubic yards, at $12.50 per yard, as the value of the stone delivered.

Congress directed the Secretary of the Treasury to cause the building to be erected, and appropriated $100,000 to accomplish the object; the same act providing that the money appropriated should be expended under the direction of the Secretary, and that he should cause proper plans and estimates to be made, so that the whole expenditure for the construction and completion of the building should not exceed the amount of the appropriation. Neither limitations nor precautions are always effectual in such cases; and Congress, at the next session, found it necessary to make another appropriation of the same amount, for the same object: but the provision that the Secretary of the Treasury should cause the building to be erected, and that the money appropriated should be expended under his direction, was never repealed or modified. 17 Stat. 524; 18 id. 228.

Such being the state of congressional legislation, it necessarily follows that the contractor, as well as the superintendent, knew that the appropriations were to be expended by the Secretary, and that no one else was authorized to direct as to the character and construction of the building. Individuals as well as courts must take notice of the extent of the authority conferred by law upon a person acting in an official capacity; and the rule applies, in such a case, that ignorance of the law furnishes no excuse for any mistake or wrongful act. ''State, ex rel. & c. v. Hayes'', 52 Mo. 578; Delafield v. The State of Illinois, 26 Wend. (N. Y.) 91; The People v. The Phoenix Bank, 24 id. 430; The Mayor and City Council of Baltimore v. Reynolds, 20 Md. 1; Whiteside v. United States, 93 U.S. 247.

Different rules prevail in respect to the acts and declarations of public agents from those which ordinarily govern in the case of mere private agents. Principals in the latter category are in many cases bound by the acts and declarations of their agents, even where the act or declaration was done or made without any authority, if it appear that the act was done, or the declaration was made, by the agent in he course of his regular employment; but the government or public authority is not bound in such a case, unless it manifestly appears that the agent was acting within the scope of his authority, or that he had been held out as having authority to do the act, or make the declaration, for or on behalf of the public authorities Story, Agency, 307 a; Lee v. Munroe, 7 Cranch, 366.

Fifty cubic yards of rubble-stone were quarried, shipped, and delivered by the contractor soon after the contract was executed, which was rejected by the assistant superintendent of the work, and he refused to receive any of the same description. By the finding of the court, it appears that the rubble-stone rejected was such as came within the description and standard of the small-sized stone required by the contract, and that the assistant superintendent informed the claimant of the kind which must be furnished to make such a wall as he wanted; which was, in fact, what is called ranged-rubble or broken-ashlar stone, more expensive in kind than that described by the contract, and which would make a wall superior in appearance to that contemplated by the specifications. Two hundred and thirty cubic yards of rubble-stone had then been quarried by the claimant, and were ready for transportation and delivery. Wheeler, Civil Engineering, 209.

Throughout, the claimant maintained that he thought that the stone he had delivered was up to the contract: but he expressed the desire to furnish such material as would give perfect satisfaction to the government and their agents; and he quarried, transported, and delivered, within the period mentioned in the finding, nine hundred and fifty-eight and three-fourths cubic yards of ranged-rubble or broken-ashlar stone, different from that described in the contract, and worth $12.50 per cubic yard when delivered. These stones so furnished were cut, trimmed, and squared by the workmen, so as to fit the same for such a wall as the assistant superintendent desired to make, it appearing that one-fourth part of the measurement of the stone was lost by such fitting. Apart from that, the findings of the court also show that the market-value of the fifty cubic yards of the rubble-stone rejected, and of the two hundred and thirty cubic yards quarried and not shipped, was $456.80, which is nearly $350 less than the cost of quarrying the said quantity not shipped.

Tested by these considerations, it is clear that the measure of damages adopted by the Court of Claims is correct.

Three items were allowed to claimant, as follows: 1. For nine hundred and fifty-eight and three-fourths cubic yards of stone delivered, at the contract price of five dollars per yard, less the amounts paid to him in the settlement of his account. 2. Forty-five cubic yards of rubble-stone delivered, and rejected by the assistant superintendent, at the contract price, less the market value of the same. 3. For two hundred and thirty cubic yards of stone quarried, and refused by the assistant superintendent, at the cost of quarrying, less the market value.

Sufficient appears to show that the contract was never rescinded by either party, and that the claimant never signified any intention to abandon it. All that is proved in that regard is that he maintained that the first parcel of stone delivered was up to the contract; and that he protested, in presence of the inspector and superintendents, that he was required to furnish stone superior to that described in the contract, and that he announced to them his intention to make claim for extra allowance. Four payments were made to the claimant, amounting in all to $3,825; and it appears that the vouchers were generally made out upon estimates in advance of the work actually done at the time, copies of which, with the certificate of the superintendent and the receipts of the claimant, are exhibited in the record.

Evidence of the most persuasive and convincing character, to show that the whole quantity of the stone for which compensation is claimed was deliver d under the contract, is exhibited in the record; and it is equally certain that the claimant knew that the agents in charge of the work had no authority whatever to enlarge or diminish, vary or alter, any of its terms, stipulations, or conditions, as the contract itself provided that no departure from its condition shall be made without 'the written consent of the Secretary of the Treasury.' Confirmation of that view is also derived from the act of Congress which conferred the authority to make the contract; the language of the act being that the money appropriated shall be 'expended under the direction of the Secretary of the Treasury, and that he shall cause proper plans and estimates to be made, so that the whole expenditure for the erection and completion of the building shall not exceed the sum appropriated for that purpose.' 17 Stat. 390.

Aid in the construction of the contract may be derived from the advertisement under which the bids were received, as the advertisement is expressly referred to in the written contract. Bids were invited by the advertisement for one thousand cubic yards, more or less, of rubble-stone. . . which is flat on the bed, sound, durable, and which breaks with a clean, square fracture; one-quarter to be bond-stones of a length equal to the thickness of the walls, and to contain not less than ten cubic feet. No stone containing less than one and one-half cubic feet, or less than twelve inches in thickness, will be received. Wheeler, Civil Engineering, 140.

Nothing can be plainer than the proposition that the contract was framed in conformity with the advertisement and the act of Congress, which provided in effect that the erection and completion of the building should be under the direction of the Secretary of the Treasury. Both parties concur in the construction of the written contract; but the claimant undertakes to set up a subsequent implied contract between himself and the assistant superintendent.

Beyond doubt, it is true that subsequent oral agreements between the parties to a written contract, not falling within the Statute of Frauds, if founded on a new and valuable consideration, may, when made before the breach of the written contract, have the effect to enlarge the time of performance specified in the written instrument, or may vary any other of its terms, or may waive and discharge it altogether. Emerson v. Slater, 22 How. 28; Goss v. Nugent, 5 Barn. & Ad. 58; Leonard v. Vredenburgh, 8 Johns. (N. Y.) 28.

Concede that proposition in its fullest extent, and yet it cannot benefit the claimant, as the findings of the court furnish no ground whatever to show that any subsequent parol agreement was ever made between the contracting parties to vary, enlarge, or diminish any of the terms of the written contract; nor is any thing of the kind pretended by the appellant. What he alleges is, that he was required by the assistant superintendent to furnish better stone than that specified in the written agreement. Proof of that allegation is exhibited; but there is not a particle of proof that the assistant superintendent ever promised that the United States should pay for the stone delivered any greater sum than five dollars per cubic yard; and, if he had so promised, it could not benefit the claimant; as the contract under which he rendered the service, and under which the four payments to him were made, contained the express stipulation that no departure from the conditions of the contract should be made without the written consent of the Secretary of the Treasury.

Four times, his accounts for rubble-stone delivered were adjusted during the progress of the work, in accordance with the terms of the written contract, as follows: 1. For three hundred cubic yards of rubble-stone at five dollars per cubic yard. 2. For two hundred cubic yards of rubble-stone at five dollars per cubic yard, and the account refers to the written contract as the basis of the charge. 3. For one hundred and fifty cubic yards of rubble-sto e at five dollars per cubic yard, less ten per cent retained, and again refers to the written agreement as the source of explanation. 4. For two hundred cubic yards of rubble-stone at five dollars per cubic yard, less ten per cent reserved, with a similar reference to the written agreement for the necessary explanation.

Appended to each is the customary certificate of the superintendent, and the receipt of the claimant for the amount of the charge, stating that it is received 'in full payment of the above account.' Proofs more persuasive and convincing that the work was done and that the payments were made under the written agreement can hardly be imagined; and they are certainly sufficient to show that the court below committed no error, either in the findings of fact or in their conclusions of law.

Ranged-rubble or broken-ashlar stones are usually of a larger size than ordinary rubble-stones; and the former when trimmed are suitable to make a wall of coursed masonry, as if constructed of squared stone of different sizes, resembling somewhat a wall constructed of dimension-stones. Loss to a considerable extent is sustained by the cutting and trimming, so that the stone measures less in the wall than when first quarried. Such a wall is more expensive than one made of mere rubble-stone, on account of the increased cost of the stone, and the additional labor in cutting and fitting the same before it is laid in the wall.

Rubble-stones flat on the bed, with certain other conditions, were specified in the advertisement; but the assistant superintendent desired to construct a wall which required a ranged-rubble stone. Mutual consent is required to modify a contract; and of course the directions of the assistant superintendent were not obligatory, for two reasons: 1. Because in contemplation of law he was not a party to the contract; 2, because he had no authority to act in behalf of the United States.

Viewed in that light, it is clear that the claimant might have declined to follow the directions given, or, if not allowed to complete his contract, might have maintained an action for damages. When the directions were given, he might have refused to comply and given notice to the United States; and, if he had done so, he proper authority would have had an opportunity to determine whether the directions given should be overruled, or whether the wall should be constructed as proposed by the assistant superintendent. Nothing of the kind was done, and the opportunity was lost to the United States to exercise any option in the matter. Instead of that, the claimant readily submitted to the directions given by the unauthorized agent, without giving any notice to the proper authority of the United States that he should claim any greater compensation. Subsequent complaints were made by him, in the presence of the superintendents, that he was required to furnish a superior stone to that required by the contract; and at one time he announced his intention to make claim for extra allowance which is in fact what the claimant now demands.

Two facts are the chief reliance of the claimant; to wit, 1, that the stone delivered is better than that which the claimant contracted to furnish; 2, that the United States accepted the material, and is now in the full enjoyment of the same. Based on these facts, the proposition of the claimant is that he is entitled to recover the actual value of the materials, without reference to the contract price: which cannot for a moment be admitted, as the findings show that the written contract was in full force and operation, no attempt having been made by either party to vary or rescind it; and that the claimant acted under it in furnishing and delivering the stone; and that the public authorities, also, in adjusting his accounts and in making the payments referred to, conformed in all respects to its terms, stipulations, and conditions.

Unquestioned authority was given to the Secretary of the Treasury to make the contract; and he in contemplation of law made it when he approved the instrument signed by the claimant and the superintendent. Even the claimant does not pretend that any other contract was ever approved by the Secretary, nor does he pretend that the assistant superintendent ever promised to pay and greater sum than the original contract price. All the claimant ever suggested was, that he intended to make claim for extra allowance, for which there is no pretence of any express contract; nor can such a claim be supported, under the circumstances of this case, upon any implied promise, the record showing that the express contract was in full force and operation. Ladd v. Franklin, 37 Conn. 62.

Express stipulations cannot in general be set aside or varied by implied promises; or, in other words, a promise is not implied where there is an express written contract, unless the express contract has been rescinded or abandoned, or has been varied by the consent of the parties. Hence the rule is, that, if there be an express written contract between the parties, the plaintiff in an action to recover for work and labor done, or for money paid, must declare upon the written agreement so long as the special agreement remains in force and unrescinded, as he cannot recover under such circumstances upon a quantum meruit. 1 Story, Contr. (5th ed.), sect. 18; Selway v. Fogg, 5 Mees. & W. 83; Creighton v. City of Toledo, 18 Ohio St. 447; Weston v. Davis, 24 Me. 374; Whiting v. Sullivan, 7 Mass. 107; Merrill v. The Ithaca & Owego Railroad Co., 16 Wend. 586; Glacius et al. v. Black, 50 N. Y. 145.

When a special contract for work and services has been abandoned and put an end to, if the employer has derived some benefit from work done under it, he may be made liable upon an implied promise to make reasonable remuneration in respect to such work. Burns v. Miller, 4 Taunt. 745; Inchbald v. Plantation Company, 17 C. B. N. S. 733; Bartholomew v. Markwick, 15 C. B. N. S. 711; Addison, Contr. (6th ed.) 23.

Implied promises or promises in law exist only when there is no express promise between the parties,-expressum facit cessare tacitum. Hence, says Chitty, a party cannot be bound by an implied promise, when he has made an express contract as to the same subject-matter; which is certainly sound law, unless the express contract has been rescinded or abandoned. Chitty, Contr. (10th ed.) 62; Toussaint v. Martinnant, 2 T. R. 100; Cutter v. Powell, 6 id. 320; Ferguson v. Carrington, 9 B. & C. 59; Atherton v. Dennett, Law Rep. 7 Q. B. 327.

Apply these principles to the case before the court, and it is clear that none of the errors assigned can be sustained; the rule being that, where the service is performed under an express contract, there can be no recovery where there is no proof of a breach of the agreement. Where there is a breach of the agreement, an action will lie for the breach; but, if there be no breach, no action will lie, as an implied assumpsit does not arise in such a case, unless it be shown that the parties have abandoned the express agreement, or have rescinded or modified it so as to give rise to such an implication. The Mayor and City Council of Baltimore v. Eschbach, 18 Md. 276.

Jurisdiction is not conferred upon the Court of Claims to allow mere extra allowances in a case where there is no promise to that effect, either express or implied. Power to hear and determine claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, and all claims which may be referred to it by either house of Congress, is vested in the Court of Claims. Mere applications for extra allowance, unsupported by any contract express or implied, must be made to Congress, where alone they can properly be entertained. Rev. Stat., sect. 1059.

Judgment affirmed.


text: Talk:Hawkins v. United States (96 U.S. 689)/Opinion of the Court

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


text:
Felton v. United States

ERROR to the Circuit Court of the United States for the

District of Massachusetts.

The sixteenth section of the act of July 20, 1868, imposing taxes on distilled spirits (15 Stat. 131), provides, among other things, that the owner, agent, or superintendent of any distillery shall erect in a room or building, to be provided and used solely for that purpose, two or more receiving cisterns; each to be at least of sufficient capacity to hold all the spirits distilled during twenty-four hours, into which shall be conveyed all the spirits produced in the distillery; and that each cistern shall be connected with the outlet of the worm or condenser by suitable pipes or other apparatus, so as to prevent the abstraction of spirits while passing from the outlet of the worm or condenser back to the still or doubler. The ninety-sixth section provides (id. 164) that if any distiller shall 'knowingly and wilfully' omit, neglect, or refuse to do or cause to be done any thing required by law in conducting his business, or shall do any thing by that act prohibited, if there be no specific penalty or punishment imposed by any other section, he shall pay a penalty of $1,000; and all distilled spirits or liquors owned by him, or in which he has any interest as owner, shall be forfeited to the United States.

This action was brought, by the United States, against Felton & Stone, distillers of spirits, to recover the penalty of $1,000 prescribed by this act, upon the alleged ground that they 'knowingly and wilfully' omitted, neglected, and refused to construct and maintain pipes and other apparatus connecting the receiving cisterns in their distillery with the outlet of the worm and condenser, in such manner as to prevent the abstraction of spirits while passing from the outlet back to the still and doubler, contrary to the form of the statute in such case provided. The defendants pleaded not guilty in 'manner and form as alleged,' and denied every allegation of the declaration.

On the trial it appeared that, the still of the defendants having become worn and defective, a new one was made and placed in their distillery, which proved to be too large for the capacity of the low-wine receiver; and that on the 18th of June, 1872, the low wines in it began to overflow; that the defendants and their servants were ignorant of this want of capacity of the receiver until it was too late to remedy it for the distillation then taking place, and that there was no course left for them but to let the wines overflow and run to waste, or to catch them, and secure their benefit to the government and themselves by dumping them into the vats for redistillation. The receiver was a part of the apparatus by which the low wines were carried from the try-box back to the doubler.

The superintendent of the distillery, on the morning of the 18th of June, 1872, apprehensive of the overflow, called upon the assessor of the district, and asked permission to draw off from the receiver a portion of the low wines, and dump them into vats for redistillation; and failing to obtain such permission from him, induced him to telegraph to the commissioner of internal revenue to grant it for a few deys, until a new cistern could be built. The answer of the commissioner was a refusal to grant the permission, and a direction that the defendants must build new cisterns. After this dispatch was sent, and before the answer was received, the superintendent arrived at the distillery; and, finding that the wines had overflowed the receiver, he permitted a portion of the contents to be drawn off. This was effected by withdrawing a plug from a pipe in the side of the receiver, about nine inches from its top. About four hundred gallons of low wines were thus drawn off, and dumped into a vat, from which material for distillation was at the time being pumped for redistillation. The record states that this was done in good faith, for the purpose of saving the property for the defendants and the government. The evidence showed that the w nes were worthless, or next to worthless, except for redistillation, and were not marketable. Among other instructions to the jury, the court was requested to give the following: 'That if the inadequacy of the low-wine cistern was unknown to the defendants and their superintendent until too late to prevent the overflow, and that then the superintendent, in the exercise of his best judgment, acting in good faith, drew off the wines and dumped the same into the vats for redistillation, the defendants were not liable.'

The court refused to give this instruction; but charged the jury that the defendants must be held accountable for the acts of their superintendent in the management of the distillery, and, if they found that he had violated the law by designedly opening the low-wine receiver, and withdrawing the plug from the pipe, so that the spirits could be and were abstracted while passing from the outlet of the worm back to the still or doubler, they were authorized to find against the defendants. The jury found a verdict for the plaintiffs, and assessed their damages at the sum of $1,000; but they accompanied their verdict with a finding that there was only a technical violation of the law, and that there was clearly no intention to defraud the government thereby. Judgment having been entered upon the verdict, the case was brought here on writ of error.

Mr. Benjamin Dean for the plaintiffs in error.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Felton v. United States


text: Talk:Felton v. United States

title: Talk:Felton v. United States


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

The act of Congress, in requiring the apparatus connecting the receiving cisterns in a distillery with the outlet of the worm and condenser to be constructed in such a manner as to prevent the abstraction of spirits while passing from the outlet and condenser back to the still and doubler, was designed to guard against frauds upon the revenue, the perpetration of which would be facilitated by any other construction. It did not intend to prohibit such abstraction when necessary, from unforeseen contingencies, to prevent the waste or destruction of the liquor. Accidents in the distillery-such as the breaking of the bands of the cisterns, and leakage from unknown defects, the danger of an approaching fire, fire, and many other causes-may not only render it necessary, but a duty, on the part of the distiller, to draw off the liquor in the speediest way. The spirit and purpose of the act are not to be lost sight of in a strict adherence to its letter. The offence, therefore, of the defendants consisted, not in their taking measures to save the low wines which were overflowing the receiver and running to waste, by drawing off a portion of the contents of the receiver and dumping it into the vats for redistillation, but in their omission to have a receiver of sufficient capacity to hold the low wines which were distilled on the eighteenth day of June, 1872. If they were culpable for the abstraction of the wines, it was because of such omission; and on this point the evidence failed in an essential particular. So far from showing or tending to show that, when the new still was made and placed in the distillery, the defendants, or any of their servants, had any knowledge of the incapacity of the receiver to hold all the wines that might be distilled on any day, it showed their ignorance of the defect until it was too late to remedy it for the distillation then taking place. There was, therefore, the absence of that knowledge which could render the neglect wilful, and therefore actionable. They must have 'knowingly and wilfully' omitted to furnish a receiver of sufficient capacity, before the severe penalty prescribed could be imposed upon them and their distilled spirits subjected to forfeiture. Doing or omitting to do a thing knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. 'The word 'wilfully," says Chief Justice Shaw, 'in the ordinary sense in which it is used i statutes, means not merely 'voluntarily,' but with a bad purpose.' 20 Pick. (Mass.) 220. 'It is frequently understood.' says Bishop, 'as signifying an evil intent without justifiable excuse.' Crim. Law, vol. i. sect. 428.

If the record were silent as to the want of knowledge of the superintendent, it would be presumed from his connection with the distillery that he knew the still was too large for the capacity of the receiver; and from his knowledge similar knowledge would be imputed to his principals. Parties are presumed to be acquainted with the utensils and machinery used in their business, and of course with their character and capacities. But the law at the same time is not so unreasonable as to attach culpability, and consequently to impose punishment, where there is no intention to evade its provisions, and the usual means to comply with them are adopted. All punitive legislation contemplates some relation between guilt and punishment. To inflict the latter where the former does not exist would shock the sense of justice of every one.

While, therefore, the presumption against the parties of knowledge of defects in the utensils and machinery of their distilleries is great, and not easily rebutted, it is not conclusive: it can be overcome. Distillers are not supposed to be experienced machinists, familiar with the construction of their different works, and with every thing required to render them perfect in all their parts. In many particulars they must necessarily rely to a great extent upon others. All that the law does require or can require of them, to avoid its penalties, is to use in good faith the ordinary means-by the employment of skilled artisans and competent inspectors-to secure utensils and machinery which will accomplish the end desired. If defects should then esist, and the end sought be not attained, or defects not ehn open to observation should subsequently be discovered, the parties cannot be charged with 'knowingly and wilfully' omitting to do what is required of them. We think, therefore, that the instruction requested should have been given. The object of the law in all its stringent provisions is to prevent fraud upon the revenue and to secure the tax levied. Here no fraud was intended by the defendants. It is so found by the jury; and, moreover, none could have been committed by them in what they did. The low wines drawn off passed into the vat, with other matter, for distillation. They were in that condition worthless, or nearly so, except for redistillation: they were not marketable spirits. The record so states, and adds that the parties in drawing off the wines, which were running over and going to waste, acted in good faith for the purpose of saving the property for themselves and the government; that is, as we understand it, of saving the property, and securing the tax to the government. If a purpose to evade the laws be an element in the offence charged, the defendants could not, under the evidence presented by the record, be rightfully subjected to the penalty prescribed and the forfeiture of their property.

The judgment will be reversed, and case remanded for a new trial; and it is

So ordered.


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


text:
Pratt v. Pratt

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Jerome Carly for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Pratt v. Pratt


text: Talk:Pratt v. Pratt

title: Talk:Pratt v. Pratt


text:
Pratt v. Pratt/Opinion of the Court

This is an action of ejectment in which plaintiff in error was plaintiff below. On the trial, he proved title in Isaac Speer in August, 1857, at which time he recovered a judgment against said Speer, under which the land in controversy was sold July 8, 1863, and a deed made to plaintiff, founded on that sale, Feb. 24, 1865. There does not seem to be any question but that this vested in the plaintiff the legal title to the land some our years before the date of the commencement of this action, which was the fifteenth day the May, 1869.

Defendant relied solely on the Statutes of Limitation of seven years as found in the acts of the Illinois legislature of 1835 and 1839, p. 675 of the Revised Statutes of 1874. We are not favored with any argument, oral or written, by the defendant in error, and have had to find out for ourselves on what he bases the defence of the court's ruling.

It does not appear that the defence under the act of 1839 was established; but the court instructed the jury that if they believed certain facts were proved, which facts had reference to the seven years' possession under the act of 1835, their verdict should be for the defendant.

The law of 1835 provides that, 'No person who has or may have any right of entry into any lands, tenements, or hereditaments, of which any person may be possessed by actual residence thereon, having a connected title in law or equity, deducible of record from this State or the United States, or from any public officer or other person authorized by the laws of this State to sell such lands, for non-payment of taxes, or from any sheriff, marshal, or other person authroized to sell such land on execution, or under any order, judgment, or decree of any court of record, shall make any entry therein, except within seven years from the time of such possession being taken; but, when the possessor shall acquire such title after the time of taking such possession, the limitation shall begin to run from the time of acquiring title.'

The defendant has, we think, brought himself within the language of this section by sufficient proof, so far as actual possession for seven years under a connected title in equity deducible of record from the United States could do so. And, on this proposition alone, the court told the jury to find for the defendant; but this instruction failed to give effect to other evidence before the jury and undisputed, which, we think, had an important bearing on the case.

Upon an examination of the plaintiff's title, it will be seen that he had no right of entry until Feb. 24, 1865. If the statute began to run against him at that time, it had not run seven years, but only a little over four, when the suit was brought. Nor was there a right of entry, or right of action, in any person against defendant during his entire possession, until the marshal's deed was made to the plaintiff; for the reason that the equitable title under which the defendant held possession was derived from Speer. That is to say, after the judgment of the plaintiff against Speer was rendered, and a lien on the land thereby established in favor of the plaintiff, Isaac Speer, the judgment debtor, conveyed the land to Thomas Speer, and Thomas Speer conveyed to Samuel Roberts, and Samuel Roberts to Charles L. Roberts. The defendant connected his possession with this title, by showing a contract of purchase from Charles L. Roberts. It is obvious, from this recital, that there was no one who could lawfully enter upon the land in the defendant's possession until the plaintiff's judgment lien had become perfected into a legal title by sale and conveyance.

Was it the purpose of this statute that the period of limitation should begin against one who had a lien of record on the land, but who was in no condition to make entry or bring suit, and when the person in privity with him, that could otherwise have made entry or brought suit, had parted with that right to the defednant?

The very first words of the section describe the person against whom the act is directed as a person having a right of entry. While no such strict construction can be maintained as that this right of entry must be in the same person during the entire seven years that possession is running in favor of the defendant, it seems reasonable that this period of seven years is not be begin when there was no right of entry in any one who could oust the defednant. The principle on which the Statute of Limitations is founded is the l ches of the plaintiff in neglecting to assert his right. If, having the right of entry or the right of action, he fails to exercise it within the reasonable time fixed by the statute, he shall be for ever barred. But this necessarily presupposes the existence of the right of entry or the right to bring suit. There can be no laches in failing to bring an action, when no right of action exists. There can be no neglect in asserting a right to the possession of property held by another, when that other is in the rightful possession.

But the possession then rightful may, by the termination of the right under which it is held, or by the creation (in some legal mode) of a superior title, cases to be rightful. The right of possession may, in some of these modes, come into another. It is then that laches begins, if the person who has thus acquired the better right neglects to assert it. And it is then that the principle of the limitation of actions for recovery of the land first applies; and, if uninterrupted for the prescribed period, becomes a perfect bar to the recovery of the rightful owner. There is nothing in this statute which appears to conflict with this view. The possession must be continuous, and connected with color of title, legal or equitable. There must be a right of entry in some one else to be tolled by this seven years' possession, and the possession must be adverse to this right of entry.

It is said that, under the decision of the courts of Illinois, such possession as that of the defedant in the present case is adverse to all the world. There is no doubt but the Supreme Court of Illinois has said this, and that, in a general sense, it is true.

The defendant, having purchased the land of the person who had the legal title, does undoubtedly hold adversely to everybody else. He admits no better right in any one. He is no man's tenant. The right by which he holds possession is superior to the right of all others. He asserts this, and he acts on it. His possession is, in this sense, adverse to the whole world. But it is not inconsistent with all this that there exists a lien on the land,-a lien which does not interfere with his possession, which cannot disturb it, but which may ripen into a title superior to that under which he holds, but which is yet in privity with it. In the just sense of the term, his possession is not adverse to this lien. There can be no adversary rights in regard to the possession under the lien, and under the defendant's purchase from the judgment debtor, until the lien is converted into a title conferring the right of possession. The defendant's possession after this is adverse to the title of plaintiff; and then, with the right of entry in plaintiff, the bar of the statute begins to run.

This is a question of the construction of the statutes of Illinois; and the case of Martin v. Judd (81 Ill. 488) is supposed to be in conflict with what we have here said. But we are unable to see any thing in that case to justify such a conclusion. It is ture that plaintiff in that case, as in this, asserted title under a judgment, a sale, and marshal's deed. The defendant asserted title under a judgment against the same party, and a sale and conveyance by the sheriff. The judgment under which plaintiff claimed was rendered July 14, 1854; sale, Sept. 1, 1856; and marshal's deed, June 28, 1858. The judgment under which defendant claimed was rendered March 4, 1858; sale, Nov. 7, 1859; sheriff's deed, Oct. 14, 1862. The defednant relied on the seven years' statute of limitation. The suit, however, was commenced April 7, 1873; and the plaintiff had his marshal's deed June 28, 1858, which was fifteen years before he brought his action. The plaintiff, therefore, had the right of entry and a right of action for fifteen years before he brought suit.

During all this time, or at least during the last seven years of it, the defendant had a possession under a title which was in every sense adverse to that of plaintiff.

In the case before us, plaintiff ued within five vears after his lien became a title. Two of the seven years' possession on which defendant relies was at a time when plaintiff had no title, and consequently no right of action, and while none existed in those from whom he derive title. Martin v. Judd cannot therefore raise the only question there is in this case. The instruction of the court to the jury, and the comments in the opinion of the Supreme Court, show that the point in controversy in that case was whether the defendant had shown a continuous possession adverse to the plaintiff. That it was adverse, there can be no doubt; though it was insisted that it was otherwise, because held under a title derived from the same person that plaintiff's was. But it is very clear that, after the deed of the sheriff under the sale on the junior judgment, the possession held under that deed was a possession in conflict with and adverse to the title then held by plaintiff; namely, his deed under the senior judgment.

The opinion in Martin v. Judd refers to, and cites with approbation, the opinion of the court in Cook v. Norton et al., 48 Ill. 20. That case was twice before the Supreme Court of Illinois, and received (as is evident) a very careful consideration. It is reported in 43 Ill. 391, and in 48 id. 20. In that case, Ryan was the common source of title. A judgment was recovered against him, Aug. 14, 1845; and a sale under execution on that judgment was made April 8, 1846. No deed was made under this sale until July, 1860, more than fourteen years after the sale, though the certificate of sale was filed in the recorder's office when it was made. Ryan conveyed the property, in a few months after the judgment was rendered, to persons under whom the defendant held title and possession. The suit was commenced within the seven years after Cook abtained the sheriff's deed; but, as this was fourteen years after the sale, the question raised was when the statute began to run against Cook's title. A few extracts from the learned opinion of Mr. Justice Lawrence will show that the court is in accord with the views we have already expressed.

'Would any one deny,' he asks, 'that the purchaser in possession could protect himself, by proper proof, under the Statute of Limitations, if more than seven years had elapsed from the time when the prior purchaser has received or might have received his deed? . . . The defendant has never acknowledged a lessor, nor any title paramount to his own. It is true the Statute of Limitations did not begin to run in his favor until the expiration of fifteen months from the sheriff's sale; because until then there was no outstanding title upon which suit could be brought. But upon that day the purchaser at the sale was at liberty to take out his deed, clothe himself with the legal title, and demand possession; and from that day the statute began to run.' The fifteen months here alluded to was the time which was allowed after a sale under execution for the debtor, or any other judgment creditor of the debtor, to redeem the land, by paying the amount for which it sold, with interest. 'But,' continued the court, 'although the sheriff's deed made on that day would have divested the legal title from Clark and vested it in the purchaser, that fact would not have converted Clark into a tenant. From that moment he became a trespasser, and might have been sued as such.' Again, speaking of the defendant Clark, the court says: 'His possession began under his deed as a possession hostile to all other persons; and, though the Statute of Limitations did not begin to run until the expiration of fifteen months from the day of the sheriff's sale, it was not because there was no adverse possession in fact until that day, but because until then there was no person in being who could bring the suit. That the sheriff's deed must be considered as having been made when the right to it accrued, so far as the Statute of Limitations is concerned, is conceded by counsel for appellant.'

These very clearly tated views of the Supreme Court of Illinois must control the present case. The plaintiff's right to the marshal's deed accrued July 8, 1863. The Statute of Limitation began to run on that day, and the bar of seven years would have become perfect on the 8th of July, 1870. This suit, however, was commenced on the 15th of May, 1869, more than a year before the statute bar was completed.

If we are wrong in what we have supposed to be the law, it must follow that, in all cases in which the owner of real estate owes money which is a lien on the land in his hands, the Statute of Lomitation begins to run against tht lien as soon as he conveys the land with possession to some one else. It can make no difference in the principle asserted, whether the lien be created by a judgment or by a mortgage. Nor can it make any difference whether the debt secured by the lien be due when the conveyance is made, or has ten or twenty years to run before the lien can be enforced against the land. The principle asserted is applicable in all these cases; namely, that from the day of the conveyance, by the debtor, of the land on which the lien of the dobt exists to some third person, accompanied by transfer of possession, the possession of the purchaser is adverse to the lien-holder, and the limitation of seven years begins to run. If this be established to be the law, the owner of real estate may borrow money on ten years' time, to the value of that estate, and give a mortgage on it to secure payment; and by a sale and conveyance of the land to a third person, with delivery of possession week afterwards, the lien is utterly defeated. For, according to this doctrine, the Statute of Limitation begins to run against the mortgagee the moment the title and possession are vested in the purchaser, and the bar of the statute becomes perfect against all the world by seven years' possession; whereas the mortgagee can take no steps to foreclose his mortgage until his money comes due, three years later.

And this doctrine is asserted in the face of the fact that there is a limitation law specially applicable to the enforcement of the judgment lien by sale under execution, and of the mortgage lien by foreclosure.

This question came before the Supreme Court of Pennsylvania in the case of Coutler v. Phillips (20 Pa. St. 155), and was fully discussed. We will close this opinion by giving verbatim the closing remarks of the court in that case, so perfectly applicable to the one before us. 'Lien creditors are subject to a limitation of five years; but the statute of limitations that concerns the action of ejectment has no relation to them. They have no estate in the land, no right of entry, no action to be affected by the statute. The statute bars the right of action, and protects the occupant, not for his merit (for he has none), but for the demerit of his antagonist in delaying his action beyond the period assigned for it. Sailor v. Hertzogg, 2 Barr, 185. But what right of action has a lien creditor to delay? His only remedy is by levy and sale. He then has an estate and a right of entry. The statute may then attach; before, it cannot.'

The peremptory instruction of the Circuit Court to the jury, that the facts we have stated established a good defence, was erroneous, and the judgment must be reversed, and a new trial had; and it is

So ordered.

MR. JUSTICE CLIFFORD dissenting.

title: Pratt v. Pratt/Opinion of the Court


text: Talk:Pratt v. Pratt/Opinion of the Court


text:
Pratt v. Pratt/Dissent Clifford

MR. JUSTICE CLIFFORD dissenting.

I dissent from the opinion of the court in this case, for two principal reasons: 1. Because it conflicts with the decisions of the State court upon the same subject. 2. Because the statute of limitations applicable to the case began to run when the defendant acquired the open, exclusive, adverse possession of the premises, by actual residence thereon, under claim and color of title: it appearing that he continued to reside there, without interruption, for the period of seven years prior to the commencement of the suit, having entered pursuant to a contract with the owner, who had a connected title to the same, dedu ible of record, from the United States; and that the defendant subsequently acquired the title to the premises, in pursuance of the contract, the rule being that such an adverse possession, if uninterrupted and continued for the period of seven years, is equivalent to an absolute title, when confirmed by a conveyance from the party having a connected title deducible of record, from the United States. Examined in the light of these suggestions, it is clear, in my opinion, that the case was properly submitted to the jury, and that the judgment founded on their verdict should be affirmed.

title: Pratt v. Pratt/Dissent Clifford


text:
Wikisource:Proofread of the Month/Coding

Index: .djvu

Works to switch in when the above are completed

 * 1) Woman of the Century
 * 2) The Works of the Rev. Jonathan Swift, Volume 3
 * 3) The Rival Pitchers
 * 4) Arts & Crafts Essays
 * 5) Popular Science Monthly Volume 20


text: Talk:Pratt v. Pratt/Dissent Clifford

title: Talk:Pratt v. Pratt/Dissent Clifford


text:
Sage v. Railroad Company

MOTION. 1. To dismiss the appeal. 2. To vacate the supersedeas.

Mr. H. B. Turner and Mr. J. C. Bullitt in support of the motions.

Mr. N. A. Cowdry and Mr. R. T. Merrick, contra.

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

title: Sage v. Railroad Company


text: Talk:Sage v. Railroad Company

title: Talk:Sage v. Railroad Company


text:
Sage v. Railroad Company/Opinion of the Court

This case was before us at the last term, upon a motion to dismiss an appeal from a decree entered Oct. 22, 1875, and to vacate a supersedeas upon that appeal. We denied the motion to dismiss, but vacated the supersedeas. The case is reported in 93 U.S. 412.

After the vacation of the supersedeas, the decree of Oct. 22, 1875, was executed, July 18, 1877, by a sale of the mortgaged property. The master having reported the sale to the court, Sage, Cowdrey, & Buell, who had been admitted as defendants in the suit, for the purpose of an appeal from the former decree, filed exceptions; which were overruled, Aug. 31, 1877; and an order was entered confirming the sale, and directing the master to convey the property sold to the Farmers' Loan and Trust Company,-the purchaser, in trust for the parties interested in the purchase under the provisions of the truse-deed, as defined in the original decree. At the same time, a deed of conveyance executed by the master was presented; and the court ordered that it be delivered to the Farmers' Loan and Trust Company, and recorded. Afterwards, during the same day, Sage, Buell, & Cowdrey, in open court, prayed an appeal to this court, from certain orders entered in the cause, Oct. 21, 1875, and from the decree of confirmation, and 'each and every other order made in the cause, Aug. 31, 1877.' They also asked that security for a supersedeas might be accepted and approved. The court entered an order allowing the appeal; but refused to accept a supersedeas bond, or, as it is expressed in the order, refused the supersedeas. The bond for the appeal was fixed at $1,000, to be made to the clerk of the court, in trust for whom it might concern, approved by one of the judges of the court, and filed within thirty days. No bond of any kind was executed at that time.

On or about the 15th of September, 1877, Sage, Buell, & Cowdrey presented to Mr. Justice Hunt, of this court (and a justice assigned to a different circuit from that in which the district of Iowa is situated), a petition setting forth the taking of an appeal by them, in open court, from the order of Aug. 31, and its allowance; and stating, further, that 'no supersedeas bond was given or approved.' They thereupon tendered a bond, payable to the clerk of the court, in the sum of $20,000, which they asked that justice to approve and allow 'to operate as a supersedeas bond in the. . . cause.' The security being satisfactory, the bond was 'approved to operate as a supersedeas when the same was filed in the office of the clerk of the Circuit Court of the United States at Des Moines, Iowa;' and it was so filed Sept. 22, 1877.

On the 24th of September, 1877, Sage and Cowdrey executed another bond, payable to the clerk, in the sum of $1,000, conditioned according to law, for a supersedeas; which was approved by the district judge for the district of Iowa, and filed in the clerk's Oct. 11, 1877.

The appellees now move to dismiss the appeal; or, in case that motion shall not be granted, for a vacation of the % supersedeas.

1. As to the appeal.

It is clear that this appeal does not bring up for examination the orders of Oct. 21, 1875. Every proceeding in the cause which was prior to Oct. 22, 1875, must be examined, if at all, under the appeal from the decree of that date still pending here

The only order made Aug. 31, 1877, which is in the nature of a final decree, is that confirming the sale, and directing the conveyance to the purchaser by the delivery of the deed presented and approved.

We have often decided that a decree confirming a sale, if it is final, may be appealed from. Blossom v. Railroad Company, 1 Wall. 655; Butterfield v. Usher, 91 U.S. 246. In this case it is final, so far as title under the sale is concerned. It cuts off the equity of redemption by the railroad company and the junior mortgagees and general creditors, except as provided in the decree of Oct. 22; and passes the title to the purchaser, subject to certain trusts already fixed by the court, over which the present appellants have control only through their appeal from the former decree. No reversal of any order hereafter made will necessarily divest this title. The proceedings hereafter will relate only to the disposition of the property acquired by the purchase and the proceeds of the sale. For relief against the sale, resort can alone be had to an appeal from the decree of confirmation.

2. As to the supersedeas.

The statute makes no provision in terms for the form of the allowance of an appeal (Rev. Stat., sect. 692); but as there can be no appeal without the taking of security, either for costs or costs and damages, and this is to be done by the court, or a judge or justice, the acceptance of the security, if followed when necessary by the signing of a citation, is, in legal effect, the allowance of an appeal. If the security is given and accepted in open court during the term at which the decree appealed from is rendered, no citation is necessary; because the parties, being presumptively present during the whole term, are charged with notice of all that is done affecting their interests. Whenever, therefore, security for an appeal is accepted during the term, an appeal is allowed. If the security is taken out of court, and after the term, a citation should be issued to bring in the parties, unless they voluntarily appear; for, until the security has been accepted, the allowance of the appeal cannot be said to have been perfected.

Whoever can sign a citation may allow an appeal; and by sect. 999, Rev. Stat., it is provided that this may be done by a judge of the Circuit Court or a justice of this court. The power is not confined to the justice assigned to the particular circuit in which the court that rendered the decree is held. When, therefore, Mr. Justice Hunt accepted the security in this case, he allowed an appeal, which, by reason of the form of the security, was to operate as a supersedeas. No question in respect to a citation arises, because the appellees have appeared.

The refusal of the Circuit Court to accept a supersedeas bond when offered during the term, did not necessarily take from a judge of that court, or a justice of this court, the power to approve one thereafter. It is true that the bond accepted in this case recites an allowance of an appeal in open court; but this is mere surplusage, and does not affect either the appeal or the validity of the bond. It may be that the form of the application was one calculated to mislead the judge, and that it did do so; but the fraud, if any, was not such as, in our opinion, would justify us in setting aside what has been done. We are satisfied that the appellants were entitled to their appeal; and that, if taken in time, the supersedeas followed as a matter of law upon the giving of the necessary security. We ought not to set aside a supersedeas, in a case like this, simply because the justice who approved the bond, and thus allowed the appeal which operated as a supersedeas, might have sent the appellants o another judge with their application, if he had known all the facts.

We are not now called upon to determine the effect of the supersedeas which has been obtained; but we are of the opinion that, to the extent it may properly operate as a stay of proceedings, it must be sustained.

The motions to dismiss the appeal and vacate the supersedeas are consequently

Denied.


text: Talk:Sage v. Railroad Company/Opinion of the Court


text:
Morgan v. Railroad Company

1. A party is not permitted to deny a state of things which his conduct or misrepresentations led another to believe existed and to act in accordance with that belief.

2. The doctrine of estoppel in pais always presupposes error on one side, and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage.

3. No particular form of words is required to the validity of a dedication. The assent of the owner, and the use of the premises for the purposes intended by the appropriation, are sufficient, and estop him from revoking the dedication.

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

This suit was commenced by a bill filed by Morgan against the Chicago and Alton Railroad Company. It involves the ownership of two strips of land adjoining that over which that company has the right of way, and forming part of its depot grounds in the town of Dwight, in the State of Illinois, which it claims to own as grantee of all the rights and property of the Chicago and Mississippi Railroad Company.

The company filed a cross-bill, wherein it set up the dedication of the property to the public use, and that Morgan was estopped in pais from denying it. The court, upon hearing, dismissed the original bill, and decreed in favor of the company on the cross-bill. Morgan thereupon appealed here. The remaining facts are stated in the opinion of the court.

Mr. Hamilton Spencer, for the appellant, cited McWilliams v. Morgan, 61 Ill. 89; Todd v. Pittsburgh, Fort Wayne, & Chicago Railroad Co., 19 Ohio St. 514; Gentleman v. Soule, 32 Ill. 271; Kelly v. City of Chicago, 48 id. 388; Rees v. City of Chicago, 38 id. 322; Jacksonville v. Jacksonville Railway Co., [p717] 67 id. 540; Illinois Insurance Co. v. Littlefield et al., id. 868, ''Warren v. The President, &c. of the Town of Jacksonville'', 45 id. 236.

Mr. John P. Wilson, contra.

title: Morgan v. Railroad Company


text: Talk:Morgan v. Railroad Company

title: Talk:Morgan v. Railroad Company


text:
Morgan v. Railroad Company/Opinion of the Court

delivered the opinion of the court.

During the years 1853 and 1854, the Chicago and Mississippi Railroad Company was engaged in locating and building a railroad from Joliet to Alton, in the State of Illinois. The appellant and Spencer and Lathrop were in the service of the company as engineers. Kersey H. Fell was employed to obtain the right of way for the road.

The line of the road was located by Oliver H. Lee, the chief engineer. The parties first named were permitted to locate the stations between the principal points. This was to be done in conformity to the interests of the company.

Spencer says, in his testimony, "My understanding with Mr. Lee was that the railroad company should have ample grounds for the transaction of their business where we located the stations."

With the view of locating one of the stations and laying out a town, four contiguous parcels of land of forty acres each were bought from the United States: one by Morgan, Spencer, and Lathrop, each severally; and the other by Kersey H. Fell, and his brother, Jesse W. Fell.

At the time of the entry of the lands, it was the intention of the parties to locate the depot at the centre of the four tracts. The line of the road was fixed some distance east of that point. This caused the depot to be located upon the tract belonging to Morgan.

Prior to the construction of the road, the other parties conveyed their three tracts to Morgan, under an agreement that all the parties should have joint, instead of separate, interests in the proposed town plat, and that Morgan, as trustee, should lay out the town, and sell and convey the lots. The proceeds were to be divided among the parties according to their original ownership respectively of the lands. On the 6th of August, 1853, Morgan conveyed to the railroad company fifty feet in width on each side of the centre of its roadway through the [p718] several tracts before mentioned. The deed required the company, among other things, to "keep station-houses and other necessary depot buildings on said first-mentioned tract." The tract first mentioned was the one originally entered by Morgan. On the 30th of January following, he laid out the contemplated town plat. The town was called Dwight. The plat shows a strip of land marked "depot," one thousand and four feet long and two hundred feet wide, with the line of the railroad through the centre. There is nothing indicating the previous conveyance of a hundred feet in width through the centre to the railroad company. The premises in controversy are fifty feet in width on each side of this hundred feet.

Morgan sold a part of the town lots, and accounted for the proceeds. In 1855, partition was made of the unsold lots, without reference to the original ownership of the several tracts as entered, and Morgan conveyed accordingly to the other several parties in interest. No notice was taken of the premises in dispute. The business of the trust was thus finally closed.

In 1853 or 1854, Morris, a draftsman in the office of the company, made a map, he says, "for the purpose of showing the company's land, as required for right of way and operating purposes, through different subdivisions of United States surveys, to be a permanent record for the use of the company, showing its property along the line of the road." Morgan and Spencer furnished the materials for the work. It is affixed to his deposition, and marked Exhibit 1. Being asked whether Morgan and Spencer saw it, he answered, "I have no doubt they saw it frequently, as those gentlemen were in the habit of coming into the office where I made this map." The map represents the premises in question as they are represented on the town plat. The diagram has the line of the railroad in the centre, and is marked "depot ground." The data for the map were furnished before the iron was laid upon that part of the roadway. Spencer testified that he supposed the making of the town plat vested a sufficient title in the company. He added, "Had I not thought so, it would have been my duty as engineer of that division to have seen that the company had a proper deed." He said, further, that Morgan occupied the same relation to the company as himself, and [p719] was clothed with the same duty. When the partition was made, he regarded the premises as belonging to the railroad company.

At the time the unsold lots were divided, Jesse W. Fell had the same understanding as to the premises. He says, "Looking at the interests of the parties as affected by the location of the depot, I have always supposed that good faith on our part demanded that these strips should belong to the railroad."

When the partition deeds were made, he supposed that all the property not dedicated had been divided. Morgan himself was examined as a witness. Speaking of the premises, he said, "I set them apart with a view to the ultimate needs of the railroad company at this station," and that it was his intention to convey to the company for a nominal consideration, if they faithfully performed their covenants in his deed for the hundred feet; but that he never had any thought of dedicating the property. He insisted that his interests had been largely sacrificed by the delinquencies of the company touching the covenants.

In 1856 or 1857, he said, "He had given the road the right of way, one hundred feet through the entire land, and fifty feet more on each side for a thousand feet long; and they on their part were to build depot buildings and crossings, and keep them up for all time to come."

At one time the company had a house on the premises used for boarding the laborers working on the road. Morgan claimed that this "was not in compliance with the terms of the grant made to the railroad company." He said that, if the company was allowed to cover the premises with Irish shanties, it would prevent the sale of a corresponding number of lots, and that he should require the house to be removed, which was accordingly done. This occurred in 1860 or 1861. In 1858 or 1859, he sold a corn crib upon the premises, but asserted no title to the ground on which it stood.

In 1867, he said to the village attorney of Dwight, "It was my intention that they" (the company) "should have those lands; and they would have had them had they behaved themselves properly, and had done as they agreed to on their part."

From 1854 to 1863, passengers and teams constantly crossed [p720] the strips, for the purpose of reaching the depot. In 1863, the Chicago and Alton Railroad Company, which had become the successor to all the rights of the Chicago and Mississippi Company, had a track or tracks on the western strip. Both strips had been and were used for various purposes connected with railroad traffic, and several structures had sprung up on them. One of them was a grain elevator, erected under a license from the railroad company. A street thirty feet in width, extending across both strips, was laid out in 1873. Before that, the depot could not have been reached from any direction without crossing private property, if the strips were such, or taking the hazards of passing along the roadway of the company for a distance of five hundred feet. The strips were therefore indispensable to the use of the depot when it was located and built.

From the time of recording the town plat up to the year 1867, no taxes were paid on the premises by either party. Morgan claimed no rents until 1865; he received none until 1867; and he made no effort to sell any part of the property until January, 1872.

The appellee insists that the record discloses a case of estoppel in pais, and that the appellant is thereby barred from maintaining the claim which he seeks to enforce in this litigation. The principle is an important one in the administration of the law. It not unfrequently gives triumph to right and justice where nothing else could save them from defeat. It proceeds upon the ground that he who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard to speak when he ought to be silent. The Bank of the United States v. Lee, 13 Pet. 107.

He is not permitted to deny a state of things which by his culpable silence or misrepresentations he had led another to believe existed, and who has acted accordingly upon that belief. The doctrine always presupposes error on one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage. Merchants' Bank v. State Bank, 10 Wall. 604.

The rule has been settled in Illinois, where this case arose, [p721] in accordance with these views. In Baker v. Pratt (15 Ill. 568), the court said, "A verbal statement is sufficient, where the party has made an admission which is clearly inconsistent with the evidence he proposes to give or the title or claim which he proposes to set up, and the other party has acted upon the admission, and will be injured by allowing the truth of the admission to be disproved." In the case of Mills v. Graves (38 Ill. 455), it was said, "Where a party stands by and sees another acting to his injury, and the owner declares that he has no claim, equity will not permit him afterwards to assert his title to the injury of the person he has thus misled." See, also, The People v. Brown et al., 67 Ill. 435; Knoebel v. Kircher, 33 id. 308; Smith v. Newton, 38 id. 230; International Bank v. Bowen, 80 id. 541; and Higgins v. Ferguson, 14 id. 269.

The facts developed in the evidence clearly establish this defence. Briefly stated, they are the advantages given to the appellant and his associates in the location of the stations; the agreement that the railroad company should have ample ground in all such cases for its purposes; the designation of the premises on the town plat by the word "depot;" the fuller designation of a like diagram of the premises on the map made for the railroad company; the furnishing of the data for that map by the appellant and his associate, Spencer; the intent of Spencer and Fell that the premises should belong to the corporation, and their belief that the title had vested accordingly; the non-payment of taxes by the appellant for so long a period; his non-claim, and his repeated declarations during that time that the property belonged to the railroad company; the fiduciary relation of the appellant and his associates; and, lastly, the location and building of the depot where it was placed. As is well remarked by the counsel for the appellee, it is incredible that the depot would have been put there if any doubt had been entertained as to the ownership by the company of property so vital to its beneficial use. It would also have been a gross fraud on the part of the appellant, who was then in the service of the company as an engineer, to stand by in silence and see it erected under such circumstances.

Whether the estoppel here, as in cases of estoppel by deed, passed the legal title by inurement, it is not necessary to consider. [p722] In either view, it is alike fatal to the appellant's claim. The authorities upon the subject are not in harmony. Favill v. Roberts, 50 N.Y. 222; ''Doe, ex dem. McPherson, v. Walters'', 16 Ala. 714; Brown v. Wheeler, 17 Conn. 345; Bigelow on Estoppel, pp. 534, 537.

The bar of the Statute of Limitations confers a positive title. Leffingwell v. Warren, 2 Black, 599.

It is also insisted, in behalf of the appellee, that the premises in question were dedicated by the appellant to the railroad company. This question arises under the twenty-first section of chapter 25 of the Revised Statutes of Illinois of 1845. The provisions of the statute are peculiar. It declares, touching town plats, that the plat or map, when executed and recorded as required, "and every donation or grant to the public, or any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted on such plat or map," shall be deemed a sufficient conveyance of such parcels of land to vest a fee-simple title, and shall be considered a general warranty against the donor and his heirs to the grantee, for his benefit, "for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever." Four classes of parties are named who may be the recipients of the donation: 1. The public; 2. Any individuals; 3. Any religious societies; 4. Any corporations or bodies politic. The purposes of the grant are not required to be set forth, nor is there any limitation as to what they shall be. The power and will of the donor are unfettered. The provisions are simply a mode of conveyance which the grantor may pursue, if he chooses to do so. The language of the statute is clear and explicit. There is no room for doubt. The case is one in which the rule applies, that there shall be no construction where there is nothing to construe. Dwarris, Statutes, pp. 143, 144. There can be no doubt of the power of the legislature so to provide.

Was the intention of the appellant to dedicate the premises to the railroad company for its use for depot purposes, as claimed, "named, expressed, or intended"? Either, as to the use, is, according to the statute, sufficient.

The facts to which we have adverted in the previous parts of [p723] this opinion seem to us conclusive upon the subject. The question must be resolved in the affirmative. If this view be correct, the legal title, by virtue of the statute, passed to the corporation with the right of user as to the premises for all depot purposes, but for none other.

"No particular forms of words is required to the validity of a dedication. The dedication may be made by a survey and plat alone, without any declaration, either oral or on the plat, that it was the intention of the proprietor to set apart certain grounds for the use of the public. An examination of the cases referred to on the argument will show that dedications have been established in every conceivable way by which the intention of the dedicator could be evidenced." Godfrey v. The City of Alton, 12 Ill. 29.

"The question whether a person intends to make a dedication of ground to the public for a street or other purpose must be determined from his acts, and statements explanatory thereof, in connection with all the circumstances which surround and throw light upon the subject, and not from what he may subsequently testify as to his real intent in relation to the matter." The City of Columbus v. Dahn, 36 Ind. 330.

All that is required is the assent of the owner, and the use of the premises for the purposes intended by the appropriation. The law considers the owner's acts and declarations as in the nature of an estoppel in pais and precludes him from revoking the dedication. City of Cincinnati v. The Lessee of White, 6 Pet. 431; Holden v. Cold Spring, 24 N.Y. 474.

These authorities apply alike to all the dedications authorized by the statute.

The subject of dedication, in all its aspects, was fully and ably considered in Rowan's Executors v. Town of Portland, 8 B. Mon. (Ky.) 232. It is sufficient to refer to the case.

Upon the grounds, both of estoppel and dedication, we hold the decree of the Circuit Court to be correct.

Decree affirmed.


text: Talk:Morgan v. Railroad Company/Opinion of the Court


text:
O'Reilly v. Edrington

MOTION to dismiss an appeal from the Circuit Court of the United States for the Southern District of Mississippi.

This is an appeal by O'Reilly, assignee in bankruptcy, from the decree of the court below, affirming, in the exercise of its appellate jurisdiction, the decree of the District Court, whereby the appellees, who were defendants, recovered against him, by reason of the matters set up in their cross-bill, $5,050.

O'Reilly having prayed an appeal from the decree, the court thereupon, May 18, 1877, 'ordered and decreed that said appeal be, and the same is hereby, allowed to operate as a supersedeas, upon the said complainant entering into bond, with sufficient sureties, to be approved by the clerk of this court, conditioned according to law, in the sum of $7,000, to be given within sixty days from this date. Or, if said complainant should desire to prosecute said appeal, so that the same shall not operate as a supersedeas, then it is ordered and decreed that the said appeal be, and is hereby, allowed, upon his entering into bond, with sufficient sureties, conditioned according to law, to be approved by the clerk of this court, in the sum of $250.'

The bond filed is a supersedeas bond in the sum of $7,000, and is approved by the clerk of the court below. The appellees now move to dismiss the appeal because,--

1. The following agreement between the parties. dated April 30, 1874, signed by them, approved by their respective counsel, and ratified and confirmed by the judge of the District Court, whose decree was affirmed by the Circuit Court, bars the right to any appeal to this court.

'This agreement, made this thirtieth day of April, 1874, between H. E. O'Reilly, assignee of W. H. Edrington, Jr., and W. H. Edrington, Jr., and H. C. Edrington, administrators and heirs-at-law of Eliza M. Edrington and W. H. Edrington, Sen., witnesses that, whereas in a certain suit pending in the District Court of the United States, Southern District of Mississippi, wherein the said H. E. O'Reilly, as assignee in bankruptcy to said W. H. Edrington, Jr., is claiming, as said assignee, the title and right of property in certain decrees rendered by the Chancery Court of Adams County against Shipland plantation, and the notes of John Hall secured by said decree, to which suit the said W. H. Edrington, Jr., H. C. Edrington, and W. H. Edrington, Sen., are defendants, it has, in order to avoid further expensive litigation, been agreed to by the said parties that a decree shall be rendered by said District Court in favor of said O'Reilly, assignee and complainant; and as a part of said agreement and compromise, whereby said litigation is to be concluded, it is agreed by the parties to this agreement that the said O'Reilly, as assignee as aforesaid, shall buy the tax-title t the said Shipland plantation, purchased by said Eliza M. Edrington during her lifetime, and also pay all taxes which have been paid by said Eliza and her said heirs and administrators upon said plantation. Now, therefore, the said W. H. Edrington, Sen., W. H. Edrington, Jr., and H. C. Edrington, hereby agree to convey by quitclaim deed to said O'Reilly, as assignee aforesaid, or to such grantee as he may designate within one year from the date of this agreement, or sooner if the money consideration shall be earlier tendered therefor, all the right, title, and interest acquired by said Eliza Edrington, during her lifetime, in said Shipland plantation, under a sale of said lands for taxes; and the said O'Reilly, as assignee aforesaid, in consideration of the premises and the aforesaid conveyance, hereby agrees to pay said W. H. Edrington, Jr., H. C. Edrington, or their attorneys, such sums of money as were paid by said E. M. Edrington in purchasing the tax-title to said Shipland plantation, and such further sums as have been paid by her or her said heirs and administrators in the payment of taxes for and on account of said plantation. It is further agreed that this agreement shall be void, unless the same be approved and confirmed by the said District Court in bankruptcy.'

2. There is no jurisdictional amount in dispute on the appeal.

3. The appeal is frivolous, and taken for delay.

4. There is no legal bond in the record.

5. The case is neither within the appellate jurisdiction of this court, nor of the Circuit Court, unless in the exercise of the supervisory powers of the latter, and there its decrees are final and irrevocable.

Mr. Thomas J. Durant and Mr. C. W. Hornor in support of the motion.

Mr. Alexander Porter Morse and Mr. A. B. Pittman, in opposition thereto, cited Knapp v. Banks, 2 How. 73; Gordon v. Ogden, 3 Pet. 33; Walker v. United States, 4 Wall. 163; Merril v. Petty, 16 id. 345; Western Union Telegraph Co. v. Rogers, 93 U.S. 565; Silver v. Ladd, 6 Wall. 440; Davison v. Lanier, 4 id. 454; Martin v. Hunter's Lessee, 1 Wheat. 361; Jerome v. McCarter, 21 Wall. 17; Martin v. Hazard Powder Co., 93 U.S. 302; Milner v. Meek, 95 id. 252; Deen v. Hemphill, Hempst. 154; Anson, Bangs, & Co. v. The Blue Ridge Railroad Co., 23 How. 1; Seymour v. Freer, 5 Wall. 822; Brobst v. Brobst, 2 id. 96; Powell, Appellate Proceedings, 371; Hilliard, New Trials, 740; Robeson v. Lewis, 64 N. C. 734; McDonald v. Bradley, 8 Ired. (N. C.) 72; Stickney v. Wilt, 23 Wall. 150.

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

title: O'Reilly v. Edrington


text: Talk:O'Reilly v. Edrington

title: Talk:O'Reilly v. Edrington


text:
O'Reilly v. Edrington/Opinion of the Court

None of the objections to this appeal are, in our opinion, well taken, except the one which relates to the approval of the bond. That, we think, must be sustained. The security required upon writs of error and appeals must be taken by the judge or justice. Rev. Stat., sect. 1000. He cannot delegate this power to the clerk. Here the approval of the bond was by the clerk alone. The judge has never acted; but, as the omission was undoubtedly caused by the order of the court permitting the clerk to take the bond, the case is a proper one for the application of the rule by which this court sometimes refuses to dismiss appeals and writs of error, except on failure to comply with such terms as may be imposed for the purpose of supplying defects in the proceedings. Martin v. Hunter's Lessee, 1 Wheat. 361; Dayton v. Lash, 94 U.S. 112.

If the appellant desires that the appeal shall operate as a supersedeas, the bond may be in the sum of $7,000; otherwise, in the sum of $250. The security may be approved by any judge or justice authorized to sign a citation upon an appeal in the cause; but this cause will stand dismissed, unless the appellant shall, on or before the first Monday in March next, file with the clerk of this court a bond, with good and sufficient § curity, conditioned according to law, for the purposes of the appeal; and it is

So ordered.


text: Talk:O'Reilly v. Edrington/Opinion of the Court


text:
Ex Parte Jackson

PETITION for writs of habeas-corpus and certiorari.

Section 3894 of the Revised Statutes provides that 'No letter or circular concerning illegal lotteries, so-called gift-concerts, or other similar enterprises offering prizes, or concerning schemes devised and intended to deceive and defraud the public, for the purpose of obtaining money under false pretences, shall be carried in the mail. Any person who shall knowingly deposit or send any thing to be conveyed by mail, in violation of this section, shall be punishable by a fine of not more than $500, nor less than $100, with costs of prosecution.' By an act approved July 12, 1876 (19 Stat. 90), the word 'illegal' was stricken out of the section. Under the law as thus amended, the petitioner was indicted, in the Circuit Court of the United States for the Southern District of New York, for knowingly and unlawfully depositing, on the 23d of February, 1877, at that district, in the mail of the United States, to be conveyed in it, a circular concerning a lottery offering prizes, enclosed in an envelope addressed to one J. Ketcham, at Gloversville, New York. The indictment sets forth the offence in separate counts, so as to cover every form in which it could be stated under the act. Upon being arraigned, the petitioner stood mute, refusing to plead; and thereupon a plea of not guilty was entered in his behalf by order of the court. Rev. Stat., sect. 1032. He was subsequently tried, convicted, and sentenced to pay a fine of $100, with the costs of the prosecution, and to be committed to the county jail until the fine and costs were paid. Upon his commitment, which followed, he presented to this court a petition alleging that he was imprisoned and restrained of his liberty by the marshal of the Southern District of New York, under the conviction; that such conviction was illegal, and that the illegality consisted in this: that the court had no jurisdiction to punish him for the acts charged in the indictment; that the act under which the indictment was drawn was unconstitutional and void; and that the court exceeded its jurisdiction in committing him until the fine was paid. He therefore prayed for a writ of habeas corpus to be directed to the marshal to bring him before the court, and a writ of certiorari to be directed to the clerk of the Circuit Court to send up the record of his conviction, that this court might inquire into the cause and legality of his imprisonment. Accompanying the petition, as exhibits, were copies of the indictment and of the record of conviction. The court, instead of ordering that the writs issue at once, entered a rule, the counsel of the petitioner consenting thereto, that cause be shown, on a day designated, why the writs should not issue as prayed; and that a copy of the rule be served on the Attorney-General of the United States, the marshal of the Southern District of New York, and the clerk of the Circuit Court. The Attorney-General, for himself and others, answered the rule, by averring that the petition and exhibits do not make out a case in which this court has jurisdiction to order the writs to issue, and that the petitioner is in lawful custody by virtue of the proceedings and sentence mentioned in the exhibits, and the commitment issued thereon.

Mr. A. J. Dittenhoefer and Mr. Louis F. Post for the petitioner.

1. From the power to establish post-offices and post-roads, that of receiving, carrying, and delivering the mail is implied; and from these are derived other incidental powers, one of them being the right to protect the mail by appropriate legislation. McCullough v. Maryland, 4 Wheat. 316; Sturtevant v. City of Alton, 3 McLean, 393.

2. As the power of Congress is exclusive, its legislation establishing a post-office or post-road, or regulating the receipt, protection, car iage, or delivery of the mail, is therefore supreme. Congress has, in the exercise of the power, declared (Rev. Stat., sect. 3982) that 'no person shall establish any private express for the conveyance of letters or packets, or in any manner cause or provide for the conveyance of the same, by regular trips or at stated periods, over any post-route which is or may be established by law, or from any city, town, or place, to any other city, town, or place, between which the mail is regularly carried.'

3. The power so vested in Congress imposed upon that body the duty to furnish adequate facilities for the secure transportation and delivery of all letters and packets which were considered legitimate mail matter at the time of the adoption of the Constitution. To provide the requisite funds for the performance of this duty, Congress has imposed reasonable rates of postage; and, to protect the contents of the mail, has prohibited the putting in the mail-bags of any poisonous or explosive article, which may injure them, or the persons connected with the mail service; and it has also limited the bulk and weight of mailable packets. These are matters of appropriate regulation. Never, however, until 1836, was any attempt made to exclude established mail matter from the mails. The President had previously recommended to Congress the passage of a law prohibiting the conveyance by mail of publications inciting persons held to service in the Southern States to revolt against their masters. Pursuant to the recommendation, a bill was introduced in the Senate providing that it should not be lawful for any deputy-postmaster knowingly to receive and put into the mail any pamphlet, newspaper, handbill, or other printed, written, or pictorial representation, touching the subject of slavery, directed to any person or post-office where, by the laws thereof, their circulation was prohibited. Cong. Globe, 1836, p. 150. The measure was signally defeated. The views of the most eminent statesmen of that day, as they appear in the published debates, against its passage upon constitutional grounds, are applicable to the statute under which the petitioner was convicted, and conclusively demonstrate its unconstitutionality.

4. In the year 1868, Congress, in the exercise of an assumed power, declared that it should not be lawful to deposit in a post-office, to be sent by mail, any letters or circulars concerning lotteries, so-called gift-concerts, or other similar enterprises (15 Stat. 196), although all letters whatsoever, without regard to the character of the communication contained in them, had been previously considered to be legitimate mail matter. That act, initiating this species of legislation, is of a like character with the one governing this case, and both are unconstitutional. If Congress can exclude from the mail a letter concerning lotteries which have been authorized by State legislation, and refuse to carry it by reason of their asserted injurious tendency, it may refuse to carry any other business letter; and as the conveyance of letters otherwise than by the mail of the United States, at stated periods, over any post-road, has, as above shown, been prohibited by Congress, that body may cut off all means of epistolary communication upon any subject which is objectionable to a majority of its members. So long as the duty of carrying the mails is imposed upon Congress, a letter or a packet which was confessedly mailable matter at the time of the adoption of the Constitution cannot be excluded from them, provided the postage be paid and other regulations be observed. Whatever else has been declared to be mailable matter,-as postal cards, postal money-orders, merchandise, &c., all of which were unknown to the postal system when the convention concluded its labors in 1787, may, in the discretion of Congress, be abolished.

Mr. Assistant-Attorney-General Smith, contra.

1. Congress has the power 'to establish post-offices and post-roads,' and to make all laws necessary and p wer for carrying into execution that power.

The framers of the Constitution meant to create an establishment as an entirety; not merely to designate the places at which mails should be taken up and delivered, and the routes by which they should be transported from point to point. Full, sovereign control over the whole subject was given, to be exercised by any appropriate means. Kohl et al. v. United States, 91 U.S. 367; Dickey v. Maysville & Lexington Turnpike Road Co., 7 Dana (Ky.), 113; Sturtevant v. City of Alton, 3 McLean, 393; 2 Story, Const., sects. 1125-1150; Rawle, Const., c. 9, pp. 103, 104.

2. Having exclusive power over the subject, Congress can prescribe the matter which shall receive the benefits of this establishment; and he who complains that he cannot use it to transmit obscene or improper communications, no more maintains a constitutional right than does the debtor who cannot avail himself of the Bankrupt Act because he owes but $100, or because (under the first law on this subject) he is not a trader. It is a question of administration merely. If the public interests require the exclusion of articles morally contaminating, as well as of poisons, acids, or explosives, to prohibit their deposit in the post-office is as 'essential to the beneficial exercise of the power' granted by the Constitution, though 'not indispensably necessary to its existence,' as any of those mentioned in McCulloch v. The State of Maryland, 4 Wheat. 316.

The remedy is in the hands of the people, if Congress so legislates as to deprive them of the full and just enjoyment of postal privileges.

Any State choosing to sanction a business which Congress thinks ought not to have the use of the mails to facilitate its transactions, can, if she please, provide means of communication for matter so excluded from the mails. 2 Story, Const., sect. 1150; 1 Tucker's Bl. Com., App. 265.

But, if there is a right to exclude any matter from the mail, the extent of its exercise is one of legislative discretion.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Ex Parte Jackson


text: Talk:Ex Parte Jackson

title: Talk:Ex Parte Jackson