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Schumacher v. Cornell/Opinion of the Court

This is a suit in equity founded upon reissued patent No. 5026. The reissue is for 'an improved wrench for securing metallic bushing in casks and barrels,' and bears date on the 6th of August, 1872. The appellee is the complainant.

The bill alleges infringement, and prays for an injunction and damages.

The answer denies the infringement, and sets up several other defences.

This opinion will be confined to the question of infringement.

The description of the appellee's wrench and his claim are thus set forth in the reissue:--

'The present invention relates to a wrench employed in securing a metallic bung-bushing within the aperture of casks, barrels, &c.; and the improvement consists in providing the shank of the wrench with a cylindrical core so arranged as to closely fit the aperture in the bushing, and a V-shaped projection adapted to fit a corresponding notch formed in the bushing, whereby the same may be turned into place without assuming an oblique position within the bung-opening, and also preventing the wrench from slipping from its seat; all of which will be more fully understood by the following description:--

'In the drawing, A represents the shank of the wrench, which consists of a plain metal bar of the requisite length. Attached to one end of this bar is a flat metal plate, B, which is provided at its centre with an elongated mortise, C, as shown in Fig. 1. This shank is so formed at its junction with the plate as to provide a V-shaped projection, D, the point of which extends forward toward the centre of the plate. E represents a cylindrical cast-metal core, which is made tapering, and so arranged as to fit the aperture in the bushing. This core is made separate from the plate, and is attached thereto by means of a bolt, F, which passes through the mortise formed in the plate, as shown in Fig. 2. The arrangement of this core is such as to admit of being removed from the bolt by removing the nut e, the object of which is to allow a core of greater diameter to be substituted when used in bushings of large size, provision being made for the elongation of the mortise in the plate for the moving of the bolt toward or from the projection D, which becomes necessary when cores of different sizes are used.

'In using the said invention, the core is inserted into the opening through the bushing, and turned until projection D falls into a notch formed in the bushing, which is adapted to fit the same; and by means of the core the bushing is kept steady, and prevented from assuming an oblique position in the bung-opening while being turned into place, and by the contact of the projection within the notch the wrench is prevented from slipping from its seat, thereby enabling the bushing to be readily turned into place.

'We do not wish to confine ourselves exclusively to the V-shaped projection, as any form that will prevent the core from turning independent of the bushing will produce the same result.

'Having thus described the said invention, we claim—

'The wrench herein described, consisting of a shank, A, plate, B, projection, D, and core, E, the said core adapted to fit the opening through the bushing, whereby the same is prevented from assuming an oblique position when being turned into place, substantially as described.'

The wrench of the appellants, out of which this controversy has grown, is also covered by a patent, but of later date than the appellee's. The specifications and claim of this patent are brief and clear.

They are as follows:--

'DESCRIPTION OF THE DRAWING FORMING PART OF THE SPECIFICATION.

'Fig. 1 is a sectional view of the wrench; Fig. 2, a perspective view of the wrench and bushing.

'GENERAL DESCRIPTION.

'A is the handle of the wrench; B, the projection which fits into the inside of the bushing; C, a rod which runs down through the projection B in a hole nearer one side than the other; D, a piece on the end of the rod C which fits into a recess in the bottom of B; E, a knob on the top of rod C; F, spring on rod C, under knob E, which holds the rod C up in place; G, a screw in the top of rod C, which holds knob E on securely in place; H, the bush; I, the projection on the bottom of the bushing which the part of the wrench D strikes against to screw the bushing into place.

'The operation of this wrench is as follows: The part B is placed in the bush, and the operator then takes hold of the knob E and turns it, and, as it turns, the part D at the bottom is turned out and catches against the projection I in the bushing, and then the handle A and the bush will turn with it and be screwed home.

'My invention is a wrench to screw bung-bushings into beer-barrels, and fits into the opening and strikes against a projection on the bushing at the inner end of the bush, thus preserving the whole strength of the bushing. The notch on the outer side of the bushing, which weakens it, is avoided.

'CLAIM.

'The combination and arrangement of projection B, rod C, piece D, and knob E, substantially as and for the purpose set forth.'

Models of both instruments have come up with the record, and are in evidence. They are made in conformity to the respective specifications of the parties. The mind is much more effectually assisted in these cases by such aids than is possible by any drawings and description, however full, without them. We are thus enabled in this case readily to come to satisfactory conclusions.

Wrenches are very dol. They have long been used for various purposes in the mechanic arts. Numerous cuts representing them in different forms are found in Knight's Mechanical Dictionary, pp. 1473, 1711, 2821.

The patent is well entitled for an improvement. It could be for nothing more.

Nothing is claimed separately. Every thing is claimed together and in the aggregate. If any thing was withdrawn, and no equivalent supplied in its place, the instrument would be a failure. Each element is a part of a compound unit, and is necessary to the completeness and efficacy of the result.

A combination is always and entirety. In such cases, the patentee cannot abandon a part and claim the rest, nor can he be permitted to prove that a part is useless, and, therefore, immaterial. He must stand by his claim as he has made it. If more or less than the whole of his ingredients are used by another, such party is not liable as an infringer, because he has not used the invention or discovery patented. With the change of the elements the identity of the product disappears.

Vance v. Campbell, 1 Black, 427.

But whether the patent here is for a combination or not is, in our view, not material. If the negative be conceded, we think the differences in the two instruments are so radical that the end of this litigation must be the same.

Upon examining the models and specifications of the parties, it is found that the appellants have nothing in common with the appellees in several important particulars. They have not the flat plate B, nor the mortise C, nor the V-shaped projection D, nor the bolt F, as shown in Fig. 2, nor any arrangement touching the core whereby it can be removed, and one of larger diameter be substituted, when the size of the cavity of the bush requires such a change; and there is no notch in the flange of the bush such as that to which the appellee's wrench is applied, and hence no projection to fit into such an indentation. Without both these things the appellee's wrench would be entirely useless. They are, therefore, vital in the invention covered by his patent. The notch is the point of engagement between the bushing and the wrench when the latter, operating as a lever, gives the former its circular motion, and thus forces it home. Without this arrangement such motion could not be communicated and the desired result produced. Hence its importance in the scheme of the invention. Without it, the rest would be as worthless for the end in view as one blade of a pair of scissors disjoined from the other.

The appellants thought this notch arrangement seriously objectionable. They claimed that it weakened the flange of the bush, and that the application of the leverage necessary to give the bush the requisite circular motion until the work is done not unfrequently involved its destruction. They sought to obviate the difficulty by an invention of their own.

The first thing to be done was to change the bush so as to give it the desired strength. This could be effected only by dispensing with the notch. That was done.

Then it was indispensable that something should be substituted whereby the necessary turning motion could be given by the wrench to the bushing without injuring or destroying the latter. For this purpose a projection was put on the inside of the bush, low down. This strengthened rather than weakened it.

Bushes, like wrenches, are very old. They are not here in question. If they were, certainly the appellants had the same right to make them with the inner projection that the appellee had to make them with the outer notch.

But, although the appellants' bush was unexceptionable, there was no wrench known in mechanics whereby it could be made to operate. The appellee's wrench was inapplicable. Projection D in his wrench, as regards such purpose, might as well have been anywhere else. It could have no possible relation of cause and effect to the thing to be done. The appellants entered the new and unoccupied field before them and succeeded. Their wrench has a projection or core attachment, which is inserted into the bush. Through this core runs a rod with a latch at the lower end, which fits into a recess at the bottom of the core. The core is introduced into the bush; the latch is turned by means of a knob at its top, so as to catch against the projection in the bush. The force of the wrench then being applied, the bush is readily screwed to its place. This was the last stage in the process of the invention.

The doctrine of mechanical equivalents has no application here, and need not be considered. The two instruments are separated by a broad line of demarcation. There is nothing in the appellee's which is suggestive of any thing in the appellants'. No one from studying the former would have been thereby led to the results embodied in the latter. They are at opposite poles. Unless the appellee is entitled to claim every form of wrench applicable to bushes, invented after his own, his bill cannot be maintained.

The appellants seem to have considered his machine as a thing to be shunned, rather than to be followed. There is, certainly, not less of novelty, utility, and invention in their wrench than in his. Whether his patent is or is not for a combination, the facts are alike fatal to this suit. There has been no infringement by the appellants.

The decree of the Circuit Court will be reversed, and the case remanded with directions to dismiss the bill; and it is

So ordered.


text: Talk:Schumacher v. Cornell/Opinion of the Court

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Garfield v. Paris

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

This was an action by Paris, Allen, & Co., of New York, against Garfield & Wheeler, of Detroit, Mich., to recover for certain spirituous liquors sold to the defendants by the plaintiffs, in the city of New York.

The facts are stated in the opinion of the court.

Verdict and judgment for the plaintiffs; whereupon the defendants sued out this writ of error.

Mr. Henry M. Duffeld for the plaintiffs in error.

The admission of the evidence concerning the labels, which were not mentioned in the bill of particulars, was erroneous.

'The office of a bill of particulars is to inform the opposite party of the causes of action to be relied upon on the trial, which are not specifically set out in the declaration.' Bosworth, J., in Bowman v. Earle, 3 Duer (N. Y.), 694; Davis v. Freeman, 10 Mich. 188. The plaintiff will be confined to the items it contains. 2 Archb. Pr. 222; 1 Tidd, Pr. 599; Williams v. Sinclair, 3 McLean, 289. When furnished, it is deemed part of the declaration. Starkweather v. Kittle, 17 Wend. (N. Y.), 20. The plaintiff must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration. Commonwealth v. Giles, 1 Gray (Mass.), 469; Commonwealth v. Snelling, 15 Pick. (Mass.) 321. Plaintiff will not be allowed to establish his claim in a manner different from that in which he has elected by his bill of particulars to consider the defendant his debtor. De Sobry v. De Laistre, 2 Har. & J. (Md.) 191.

If the sale of the liquor was a Michigan contract, it was void under the prohibitory liquor law of that State, and the plaintiffs cannot recover. Myers v. Carr, 12 Mich. 63; Roethke v. Philip Best Brewing Co., 33 id. 341; In re Paddock, 6 Nat. Bank. Reg. 132.

The sale was not made in the State of New York, unless there consummated. The delivery of the labels to one of the plaintiffs in error was not a receipt and acceptance of part of the goods sold. These labels were not invoiced; no price was put upon them; no given amount or number of them was agreed to be furnished; nothing was added to the price of the whiskey on account of them. They are not proven to be of any value. The receipt and acceptance by the buyer must be such as completely affirms the contract. Heath, J., in Kent v. Huskinson, 3 Bos. & Pul. 223.

It must appear that the vendor has parted with the possession of the goods, and placed them under the control of the purchaser, so as to put a complete end to all the rights of the unpaid vendor, as such. Gray v. Davis, 10 N. Y. 285; Messer v. Woodman, 22 N. H. 172; Addison, Contr. 113, note 3. It is not enough that the buyer should have taken a part of the goods in his possession, Browne, Stat. Frauds, sect. 326; nor have taken out a sample, German v. Boddy, 2 Car. & Kir. 145; nor even examined the whole lot delivered, for the purpose of ascertaining the quantity or quality, Baylis v. Lindy, 4 L. T. N. S. 176; even though the lot be injured thereby, Curtis v. Pugh, 10 Ad. & E. 111; Elliott v. Thomas, 3 Mee. & W. 170.

A case somewhat resembling this is decided against the validity of the contract, in Delventhal v. Jones, 53 Mo. 460. And the later decisions have firmly laid down the important and true principle that there can be no acceptance and receipt affirming and binding the contract, so long as the buyer has the privilege of returning the goods as objectionable in quantity or quality. Hanson v. Armitage, 5 Barn. & Ald. 557; Howe v. Palmer, 3 id. 321; Acebal v. Levy, 10 Bing. 376; Nicholle v. Plume, 1 Car. & P. 272; Norman v. Phillips, 14 Mee. & W. 277; Smith v. Surnam, 9 Barn. & Cress. 561; Coats v. Chaplin, 3 Add. & E. N. S. 483; Jordan v. Norton, 4 Mee. & W. 155. And see, to the same effect, Shindler v. Houston, 1 Comst. (N. Y.) 261; Outwater v. Dodge, 6 Wend. (N. Y.) 400; Lloyd v. Wright, 25 Ga. 215; Spencer v. Hale, 30 Vt. 314; Maxwell v. Brown, 39 Me. 98; Shepherd v. Pressy, 32 N. H. 49; Coombs v. Bristol & Exeter Railway Co., 3 H. & N. 510; Rogers v. Phillips, 40 N. Y. 519.

Can it be seriously urged, that, by merely allowing the labels to be sent to the hotel of one of the plaintiffs in error, in New York, they thereby precluded themselves from objecting that the liquor afterwards furnished was not what they purchased? Could the plaintiffs have compelled defendants to take any liquors they might choose to ship, because Wheeler, while in New York, had accepted a few labels? Or, on the other hand, can it be claimed that the defendants in error, by delivering the labels, had lost their right of stoppage in transitu, in case the other party became insolvent?

The court declined to hear counsel for the defendants in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Garfield v. Paris


text: Talk:Garfield v. Paris

title: Talk:Garfield v. Paris


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Garfield v. Paris/Opinion of the Court

Neither the manufacture nor the sale of spirituous or intoxicating liquors is allowed by the law of the State where the present controversy arose. Instead of that, the State law provides that all payments made for such liquors so sold may be recovered back, and that all contracts and agreements in relation to such sales shall be utterly null and void against all persons and in all cases; with an exception in favor of the bona fide holders of negotiable securities and the purchasers of property without notice. 1 Comp. Laws, Mich., p. 690.

Two bills of goods, consisting of spirituous liquors, were purchased of the plaintiffs by the defendants, which, including exchange, amounted to $4,143.69. Payment being refused, the plaintiffs brought suit in the court below to recover the amount, and the verdict and judgment were for the plaintiffs. Exceptions were taken by the defendants, and they sued out the present writ of error.

Sufficient appears to show that the plaintiffs are citizens of New York, and that the defendants are citizens of Michigan; that the liquors were purchased of the plaintiffs, as alleged; and that the same were received and sold by the defendants: but they set up the prohibitory liquor law of the latter State, providing that all such contracts are utterly null and void.

Evidence was introduced by the plaintiffs, showing that the liquors were ordered by one of the defendants at a time when he was temporarily in the city of New York; and that the plaintiffs, by his request, sent certain labels to be attached to the same, to the defendant, at the hotel in that city where he was stopping. By the agreement at the time the sale was made, the plaintiffs were to furnish these labels to the purchasers; and the evidence showed that the value of the labels entered into the price charged for the liquors, and that the labels, by the terms of the contract, were to be furnished to the buyers, by the sellers, without any other charge than the price to be paid for the liquors. Labels of the kind were something more than ordinary labels affixed to bottles, as they indicated not only the kind of liquor which the bottle contained, but also embraced an affidavit that the distillation was genuine, and of the particular brand manufactured and distilled by the plaintiffs; support to which is derived from the fact that the label was copyrighted, so that no other person than the plaintiffs had any right to make, use, or vend it.

Certain questions were submitted to the jury, among which were the following: Were there any receipt and acceptance in New York of part of the goods sold; and, if so, what was so received? To which the jury answered, There was; to wit, certain labels. Was any thing added to the price of the liquors on account of the labels, and, if so, what amount or price? Answer: There was nothing added; but the labels added to the value of the liquors, and formed part or parcel of the price.

Testimony was offered by the plaintiffs in respect to the delivery of the labels to the defendant while he was at the hotel in New York, to which the defendants objected; but the court overruled the objection, and the testimony was admitted, subject to the defendant's objection.

Errors assigned are in substance and effect as follows: 1. That the court erred in refusing to charge the jury that the delivery of the labels, as proved, was not a receipt and acceptance of part of the goods sold within the meaning of the State Statute of Frauds. 2. That the court erred in refusing to charge the jury that the evidence was not sufficient to take the case out of the Statute of Frauds. 3. That the court erred in refusing to charge the jury that the sale was not consummated until the defendants received and accepted the goods in the State where they resided. 4. That the court erred in instructing the jury that the defence set up is one not to be favored, and that the proof to support it must be clear and satisfactory, before the jury can consistently enforce it. 5. That the statute is a penal statute, in derogation of the rights of property; and that for that reason, if for no other, it must receive a strict construction. 6. That the court erred in instructing the jury that if the labels were included in the contract, and the liquors were worth more to the defendants on account of the labels, then the receipt and acceptance of the same by the acting defendant took the case out of the New York Statute of Frauds, and their verdict should be for the plaintiffs.

Due exception was also made to the ruling of the court in admitting the evidence reported in respect to the delivery and acceptance of the labels furnished to the purchasers at the time the order for the liquors was filled, the objection being that the labels are not mentioned in the plaintiff's bill of particulars filed in the case.

Matters of evidence are never required to be stated in such a paper. Courts usually require such a notice where the declaration is general, in order that the defendant may know what the cause of action is to which he is required to respond. Nothing is wanted in this case to meet that requirement, as all the items of the demand are distinctly and specifically stated in the bill filed in compliance with the order of the court.

Merchants selling spirituous liquors in bottles usually label the bottles, to indicate the kind, character, age, quality, or proof of the liquor, or to specify the name of the manufacturer, or the place where it was manufactured or distilled. Such are somewhat in the nature of trade-marks, and are useful to the seller of the liquors, to enable him to distinguish one kind of liquor from another without opening the bottle, and to commend the article to his customers without oral explanation.

Coming to the errors formally assigned, it is manifest that the first and second may be considered together, as they depend entirely upon the same considerations.

Both parties concede that the bargain for the sale of the liquors in this case was made in New York; and, by the laws of that State, contracts for the sale of any goods, chattels, or things in action, for the price of $50 or more, shall be void, unless, 1, a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or, 2, unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, 3, unless the buyer shall at the time pay some part of the purchase-money. 3 Rev. Stats. New York (6th ed.), 142, sect. 3.

Four answers are made by the plaintiffs to that proposition, each of which will receive a brief consideration:--

1. That the defendants received and accepted the labels which the plaintiffs, contracted to furnish at the time they filled the order for the liquors. 2. That the case is not within the Statute of Frauds, inasmuch as the defendants received the liquors, and sold the same for their own benefit. 3. That the statute of Michigan, prohibiting the sale of such liquors, and declaring such contracts null and void, has been repealed. 4. That the subsequent letter written by the defendants to the plaintiffs takes the case out of the operation of the statute requiring such a contract to be in writing.

Authorities almost numberless hold that there is a broad distinction between the principles applicable to the formation of the contract and those applicable to its performance, which appears with sufficient clearness from the language of the statute,-such a contract must be in writing, or there must be some note or memorandum of the same to be subscribed by the party to be charged: But the same statute concedes that the party becomes liable for the whole party to be charged: but the same accepts and receives part of the same, or the evidences, or some of them, of such things in action; and the authorities agree, that, where the question is whether the contract has been fulfilled, it is sufficient to show an acceptance and actual receipt of a part, however small, of the thing sold, in order that the contract may be held to be good, even though it does not preclude the purchaser from refusing to accept the residue of the goods, if it clearly appears that they do not conform to the contract. Benjamin on Sales (2d ed.), 117; Hinde v. Whitehouse, 7 East, 558; Morton v. Tibbett, 15 Ad. & E. N. S. 427.

Hence, said Lord Campbell, in the case last cited, the payment of any sum in earnest to bind the bargain, or in part payment, is sufficient; the rule being, that such an act on the part of the buyer, if acceded to on the part of the vendee, is an answer to the defence.

'Accept and receive' are the words of the statute in question; but the law is well settled, that an acceptance sufficient to satisfy the statute may be constructive, the rule being that the question is for the jury whether the circumstances proved, of acting or forbearing to act, do or do not amount to an acceptance within the statute. Bushel v. Wheeler, 15 Ad. & E. N. S. 445; Chitty, Contr. (10th ed.) 367; Parker v. Wallis, 5 El. & Bl. 21; Lillywhite v. Devereux, 15 Mee. & W. 285; Simmonds v. Humble, 13 C. B. N. S. 261; Addison, Contr. (6th ed.) 169.

Questions of the kind are undoubtedly for the jury; and it is well settled that any acts of the parties indicative of ownership by the vendee may be given in evidence to show the receipt and acceptance of the goods to take the case out of the Statute of Frauds. Conduct, acts, and declarations of the purchaser may be given in evidence for that purpose; and it was held, in the case of Currie v. Anderson (2 El. & El. 591), that the vendee of goods may so deal with a bill of lading as to afford evidence of the receipt and acceptance of the goods therein described. Gray v. Davis, 10 N. Y. 285.

Throughout, it should be borne in mind that one of the defendants in person visited the plaintiff's place of business, and while there ordered the liquors, and that the liquors were all received by the defendants at their place of business, and were sold by them for their own benefit; that the contract between the sellers and purchasers was that the former should furnish the labels as part of the contract; and the evidence shows that they fulfilled that part of the contract, and that they delivered the same to the contracting party at his hotel, before he left the State where the purchase was made.

Satisfactory evidence was also introduced by the plaintiffs, showing that they drew a draft on the defendants for the payment of the price, and that the defendants answered the letter of the plaintiffs declining to accept the same, as more fully set forth in the record, in which they state that the purchase was on four months, with the further privilege of extending the time two months longer by allowing seven per cent interest, adding, that if the plaintiffs doubted their word, they had 'a written contract to that effect.' What they claim in the letter is that the arrangement was made with the salesman; and they state that they would not have given him the order, if he had not given them 'those conditions.' They make no complaint that the liquors were not of the agreed quantity and quality, and certainly leave it to be implied that they had been duly received, and that they were satisfactory.

It was contended by the plaintiffs that the case was taken out of the Statute of Frauds: 1. Because the labels were a part of what was purchased, and that the defendants accepted and received the same at the time and place of the purchase. 2. That the subsequent letter, as exhibited in the record, is sufficient for that purpose.

Enough appeared at the trial to show that the labels were copyrighted, and that the plaintiffs agreed to furnish the same without any additional charge; and the bill of exceptions also shows that it was conceded that the defendants accepted and received the labels at the hotel, as claimed by the plaintiffs. Still, the defendants denied that the labels were of any value, or that they entered into or constituted any part of the things purchased; both of which questions the circuit judge submitted to the jury, remarking, at the same time, that by the furnishing the labels with the liquors the defendants acquired the right to use the copyright to that extent, without which, or some equivalent permission or license, they would have had no such lawful authority.

Pursuant to these suggestions, the jury were directed to ascertain whether the liquors were worth more to the defendants on account of the labels, and whether the labels were included in the contract; and they were instructed, that, if they found affirmatively in respect to both of these inquiries, then the receipt and acceptance of the labels as alleged took the case out of the Statute of Frauds, because then there was a receipt and acceptance by the defendants of a portion of the things purchased.

Appropriate instruction was also given to the jury in respect to the subsequent letter sent by the defendants to the plaintiffs; and the jury were told by the presiding judge, that if they found, under the instructions given, that the defendants received and accepted a part of the things purchased, then the contract was made valid as a New York contract, and that their verdict should be in favor of the plaintiffs. Currie v. Anderson, supra. That if the contract was not made valid by the acceptance and receipt of the labels, nor by the letter exhibited in the record, then it was a Michigan contract, and their verdict should be for the defendants. Meredith v. Meigh, 2 El. & Bl. 364; Castle v. Sworder, 6 H. & N. 828; Law Rep. 1 C. P. 5.

Controlling authorities already referred to show that the question whether the goods or any part of the same were received and accepted by the purchaser is one for the jury, to which list of citations many more may be given of equal weight and directness. Just exception cannot be taken to the form in which the question was submitted to the jury; and the record shows that the verdict was for the plaintiffs, and that the jury found, in response to the fifth question, that the labels added to the value of the liquors, and that they formed part or parcel of the price. Jackson v. Lowe, 7 Moore, 219.

Where goods are purchased in several parcels, to be paid for at a future day, the whole, within the meaning of the Statute of Frauds, constitutes but one contract, and the delivery of part to the purchaser is sufficient to take the case out of the operation of the Statute of Frauds. Mills v. Hunt, 20 Wend. (N. Y.) 431.

Apply the finding of the jury in this case to the conceded facts, and it shows that the defendants were in the situation of a purchaser who goes to a store and buys different articles, at separate prices for each article, under an agreement for a credit, as in this case, accepting a part, but leaving the bulk to be forwarded by public conveyance. Frequent cases of the kind occur; and it is well settled law that the delivery of a part of the articles so purchased, without any objection at the time as to the delivery, is sufficient to take the case out of the Statute of Frauds as to the whole amount of the goods. Mills v. Hunt, 20 id. 431.

The delivery in such a case, in order that it may have that effect, must be made in pursuance of the contract, the question whether it was so made or not being one for the jury; but if they find that question in the affirmative, then it follows that the case is taken out of the Statute of Frauds. Van Woert v. Albany & Susquehanna Railroad Co., 67 N. Y. 539.

Parol evidence is admissible to show what the circumstances were attending the contract, and to show the receipt and acceptance, in whole or in part, of the goods purchased. Tomkinson v. Staight, 17 C. B. 695; Kershaw v. Ogden, 3 H. & C. 715.

Due acceptance and receipt of a substantial part of the goods will be as operative as an acceptance and receipt of the whole; and the acceptance may either precede the reception of the article, or may accompany their reception. 2 Whart. Evid., sect. 875.

Differences of opinion have existed upon some of these matters; but all the authorities, or nearly all, concur that the question is for the jury, to be determined by the circumstances of the particular case. Id.

Viewed in the light of these suggestions, it is clear that the question whether the evidence showed that the case was taken out of the Statute of Frauds by the acceptance and receipt by the defendants of a part of what was purchased by them, in connection with the letter of the defendants exhibited in the record, was fairly submitted to the jury, and that their finding in the premises is final and conclusive.

Attempt was also made by the plaintiffs to support the judgment, upon the ground that the defendants were estopped to set up the Statute of Frauds as a defence, in view of the fact that they had received the liquors and sold the same for their own benefit; but it is not necessary to examine that proposition in view of the conclusion that the case is taken out of the operation of the statute by the other evidence and the finding of the jury. Nor is it necessary to give any consideration to the proposition that the act of the State of Michigan to prevent the manufacture and sale of spirituous and intoxicating liquors as a beverage is repealed, for the same reason, and also for the additional reason, that the repealing clause saves 'all actions pending, and all causes of action which had accrued at the time' the repealing act took effect. Sess. Acts, 1875, p. 279.

Having come to the conclusion that the case is taken out of the Statute of Frauds, it is not deemed necessary to give the other assignments of error a separate examination. Suffice it to say, that the court is of the opinion that there is no error in the record.

Judgment affirmed.

title: Garfield v. Paris/Opinion of the Court


text: Talk:Garfield v. Paris/Opinion of the Court


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United States v. Kaufman (96 U.S. 567)

APPEAL from the Court of Claims.

This was an action against the United States to recover the amount which the commissioner of internal revenue had certified to the comptroller of the treasury that the claimant was entitled to have refunded to him the value of returned special tax stamps, after deducting therefrom five per cent, as provided by law.

The facts are stated in the opinion of the court.

There was a judgment against the United States, who thereupon appealed.

The Solicitor-General for the United States.

Mr. P. E. Dye, contra.

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

title: United States v. Kaufman (96 U.S. 567)


text: Talk:United States v. Kaufman (96 U.S. 567)


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United States v. Kaufman (96 U.S. 567)/Opinion of the Court

Two questions are presented in this case:--

1. Whether the Court of Claims has jurisdiction of a suit, brought to recover an amount allowed by the Commissioner of Internal Revenue, upon the claim of a brewer for an excess of special tax stamps used by him in payment of the special tax upon his business at the beginning of the year, when, at the close, it was found that he had manufactured less than five hundred barrels, and the payment of the amount so allowed has been refused upon proper application at the treasury.

2. Whether the facts found are sufficient to warrant the judgment.

The Court of Claims has jurisdiction of 'all 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.' Rev. Stat., sect. 1059.

All special taxes imposed by law, accruing after April 30, 1873, must be paid by stamps denoting the tax. Rev. Stat., sect. 3238; 17 Stat. 402, sect. 3. A brewer is required to pay a special tax of $100, 'provided that any person who manufactures less than five hundred barrels a year shall pay the sum of $50' (Rev. Stat., sect. 3244; 14 Stat. 117); and he cannot engage in or carry on his business until he has paid the tax. Rev. Stat., sect. 3232; 14 Stat. 113. 'The Commissioner of Internal Revenue may, from time to time, make regulations, upon proper evidence of facts, for the allowance of such of the stamps issued under the provisions of this chapter, or any internal revenue act, as may have been spoiled, destroyed, or rendered useless or unfit for the purposes intended, or for which the owner may have no use, or which, through mistake, may have been improperly or unnecessarily used, or where the rates of duties represented thereby have been paid in error or remitted; and such allowance shall be made either by giving other stamps in lieu of the stamps so allowed for, or by repaying the amount or value, after deducting therefrom, in case of repayment, the sum of five per cent, to the owner thereof;. . .' Rev. Stat., sect. 3426; 13 Stat. 294, sect. 161; 17 id. 257, sect. 41. Under the authority of this act regulations were adopted, with the approval of the Secretary of the Treasury, June 12, 1873, among which is the following: 'Claims for allowance on account of special tax stamps will not be considered in cases where any business has been done thereunder, except in the case of a brewer who has paid a special tax stamp of $100, but who, at the close of the special tax year, is found to have produced less than five hundred barrels. In such case, the excess paid by him, less five per cent, will be allowed.' Int. Rev. Circular, No. 109.

It would seem to be clear from this statement that the allowance of a claim by the Commissioner of Internal Revenue, under the authority of these statutes and treasury regulations, raised an implied promise on the part of the United States to pay any amount that might actually be due the claimant under such circumstances, and certainly such a claim would be 'founded upon a law of Congress.'

We know it was held in Nichols v. United States (7 Wall. 122), that the Court of Claims did not have jurisdiction of a suit to recover back duties upon imported goods illegally assessed, and that the same rule applied to internal revenue eases where the decision of the commissioner upon appeal was adverse to the claimant. In such cases, a special remedy is given by suit against the collector, if the necessary steps are taken to secure the right to sue at all. The reason is, that as the liability is one created by statute, the special remedy provided by the same statute is exclusive.

But here the case is different. The claim has been presented to and allowed by the proper officer. The claimant has pursued the statutory remedy to the end. He is satisfied with the decision that has been given, and insists upon the payment which the government has undertaken to make. No special remedy has been provided for the enforcement of the payment, and consequently the general laws which govern the Court of Claims may be resorted to for relief, if any can be found applicable to such a case. This is upon the principle that 'a liability created by statute without a remedy may be enforced by an appropriate common-law action.' Pollard v. Bailey, 20 Wall. 527. And as against the government there are no common-law actions: any appropriate action within the scope of the jurisdiction of the Court of Claims may be resorted to, unless specially prohibited. Here the right has been given, and a liability founded upon a law of Congress created. Of such liabilities the Court of Claims has jurisdiction, and no other remedy has been provided.

Do the facts found warrant the judgment?

These facts are, in effect, that the claimant, who was a brewer, on the third day of May, 1873, paid to the internal revenue collector of his district $100, as the special tax on his business for one year, from May 1, 1873, to April 30, 1874, for which a special tax stamp was given him by the collector; that, May 6, 1874, he applied to the Commissioner of Internal Revenue to refund $50 of this amount, as he had only manufactured three hundred and fifty barrels during the year; that evidence in support of this application was submitted, and the commissioner on the 5th of July, 1874, certified to the Comptroller of the Treasury that the claimant had returned to him an internal revenue special tax stamp of the face value of $50, for which he was entitled to have refunded him $47.50; and that on the same day the commissioner notified the claimant of the allowance of his claim to that amount, for which a certificate had been lodged with the Comptroller of the Treasury.

It is now insisted that the finding of an allowance by the commissioner is not enough, and that the court should have gone behind the allowance, and found the facts in respect to the original claim. Such, we think, is not the law. To say the least, the allowance of a claim under this statute is equivalent to an account stated between private parties, which is good until impeached for fraud or mistake. It is not the allowance of an ordinary claim against the government, by an ordinary accounting officer, but the adjudication by the first tribunal to which the matter must by law be submitted. Until so submitted, and until so adjudicated, there is not even a prima facie liability of the government; but when submitted, and when allowed upon the adjudication, the liability is complete until in some appropriate form it is impeached. When, therefore, the court found the adjudication against the government, without impeachment, the liability to pay was established. We do not decide that in the Court of Claims the adjudication of the commissioner may not be impeached, but we do decide that, until impeached, it is binding, and that the affirmative of the impeachment is upon the government.

It is said, however, that the finding does not show that the government has refused payment of the allowance. In Clyde v. United States (13 Wall. 38), we held that a rule of the Court of Claims was void which required 'that, where the case was such as is ordinarily settled in an executive department, the petition should show that application for its allowance had been made to that department, and without success, and the decision thereon;' but that case was not one in which the action was based upon the decision of the department. Here it is. The foundation of the suit is the refusal of the government to pay a claim allowed by an officer authorized to repay moneys overpaid under certain circumstances, but who can only make payment through the proper disbursing agents of the treasury. The officer has done all he can do. He has made the allowance, and certified it to the Comptroller of the Treasury for payment. It does not appear in express terms that those charged with the duty of actually making the payment are in any respect at fault. For all that is shown in the finding, if the claimant had called upon the treasurer, he would have received his draft on the treasury, and, when that was properly presented, the money. The case is not materially different from what it would have been if he had procured his draft, and sued upon it without having first presented it for payment. Under such circumstances, clearly there could have been technically no refusal to pay until there had been a demand, or something which was an equivalent. Here, an application for payment was made to a proper officer of the department. He performed his duty by certifying his allowance, and sending it forward in the regular course of business through the department for payment. The adjustment was complete, and, for all the that appears, nothing more was necessary for the claimant to do except to call at the treasury and get his money. The presumption under such circum stances is that payment would have been made upon proper demand.

This record, however, does show that the claim was allowed July 3, 1874, while the suit was not commenced until June 25, 1875; and the trial below evidently proceeded upon the theory that no such objection to a recovery existed. In the opinion, it is said that the 'comptroller did not pass the claim, and the allowance made by the commissioner has never been paid.' So, too, in other cases where this is referred to, it is described as one in which 'the comptroller refused to pass the account, and interposed objections which, if final, would thwart the action of the commissioner, and prevent the execution of the provisions of the regulations.' Boughton's Case, 12 Ct. Cl. 336. And in the argument here, on behalf of the appellee, it is said 'that the Assistant-Attorney-General admitted on the trial in the court below the fact of the refusal of the United States to pay the allowance made by the commissioner in favor of the claimant,' and 'that it was on the theory of the case that the defendants had refused to make payment of the allowance that the court entertained jurisdiction.' Under these circumstances, we think it clear that this point was conceded below, and that it ought not to be considered here.

Judgment affirmed.


text: Talk:United States v. Kaufman (96 U.S. 567)/Opinion of the Court


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Insurance Company v. Eggleston

ERROR to the District Court of the United States for the Northern District of Mississippi.

This was an action in the District Court of the United States for the Northern District of Mississippi, having the same powers as a Circuit Court, on a policy of life insurance, issued by the plaintiff in error, the defendant below, a New York corporation doing business in the city of New York, on the 11th of November, 1868, for the sum of $5,000, on the life of Edward C. Eggleston, a resident of the State of Mississippi, for the benefit of his children, Louisa and Thomas, and in consideration of an annual premium of $306, payable after the first premium semi-annually, one-half on the 11th of November, and one-half on the 11th of May, in each year. The policy contained the usual condition that if the premiums were not paid on or before the respective days named, together with any interest that might be due thereon, the company should not be liable. The following clause was added: 'All receipts for premiums are to be signed by the president or actuary. Agents for the company are not authorized to make, alter, or discharge contracts, or waive forfeitures.' Eggleston died on the 5th of January, 1872.

The defence set up on the trial was that the policy was forfeited by the failure of the assured to pay the last instalment of premium, which fell due on the 11th of November, 1871. The cause was tried by a jury, who found for the plaintiffs; and the only question raised by the bill of exceptions and brought here for review, is, whether the judge properly left to the jury the question of fact which was made by the plaintiffs below in answer to the alleged forfeiture. The case presented on the trial, as shown by the bill of exceptions, is as follows:--

The plaintiffs proved that the policy of insurance mentioned in the declaration was delivered, and the first premium received thereon, by one Stephens, a local agent of the defendant, in Columbus, Miss., and that said Eggleston, upon whose life said policy was issued, then and up to his death resided in the immediate vicinity; that soon after the issue of said policy the agency of said Stephens was revoked, and no other agent appointed at that place; that said Eggleston was notified by defendant to pay the next premium falling due to Johnston & Co., its agent at Savannah, Ga., and that he was also notified to pay the subsequent premiums to B. G. Humphreys & Co., the defendant's agents at Vicksburg, Miss., except the one falling due Nov. 11, 1871, all the other premiums falling due before the death of said Eggleston having been paid. It was also testified by the sons of said Eggleston, and by Goodwin, the cashier of the bank through which the other payments had been made, that if any notice was given by the defendant to said Eggleston, to whom and where the said premium due the eleventh day of November, 1871, should be made, that they did not know it; and that said Goodwin had the money to pay the said premium, which would have been paid had the notice been given; and after said premium became due and payable, said Goodwin, for said Eggleston, telegraphed to Johnston & Co., at Savannah, Ga., inquiring to whom payment should be made; who replied, to telegraph to B. G. Humphreys & Co., at Vicksburg; that B. G. Humphreys & Co. Replied, to make payment to Baskerville & Yates, sub-agents at Macon, Miss., who held the payment receipt. On Dec. 30, 1871, a friend of said Eggleston tendered payment of the premium to Baskerville & Yates, which was refused unless a certificate of health was furnished; said Eggleston was when sick, and died on the 5th of January, 1872. One Williams, a clerk of Baskerville & Yates in their insurance business, and a witness for the defendant, testified that on the 1st of November, 1871, he mailed a notice, post-paid, to said Eggleston, addressed to him at Columbus, Miss., to make payment to Baskerville & Yates, agents at Macon, Miss., and that they held the proper premium receipt. Macon, Miss., it was found, is thirty miles from Columbus by railroad.

Upon this evidence the judge charged the jury as follows. 'The non-payment of the premium is admitted; and, if nothing more appears from the evidence, the plaintiffs will not be entitled to recover. To avoid the defence, it is insisted by the plaintiffs that the non-payment was caused by the defendants not having given to the said Eggleston notice of the place where payment was required, and, therefore, the fault of the company, and not that of Eggleston or the plaintiffs. The onus of proving the cause for non-payment is on the plaintiffs. [If you shall believe from the evidence that the payments of the premiums had, before that time, been made to such agents as the company had designated from time to time, and of which and to where said Eggleston was given notice by the defendant, and that no such notice was given to said Eggleston before the time the non-paid premium fell due, and that as soon as he did thereafter receive such notice he did tender to the designated agent the premium due, and that such failure to pay was caused by the want of such notice, then the policy was not forfeited, and the plaintiffs will be entitled to recover the amount of the policy, with six per cent interest, from sixty days after the company was notified of the death of Eggleston, less the amount of any unpaid premiums, with like interest, up to the death of said Eggleston.] If you shall believe from the evidence that the notices before given were by letter through the mail, and that the agent of the company authorized to receive payments of the premium mailed to said Eggleston, at his post-office, such notice within such time as, by due course of mail, he would have received it, and within a reasonable time for Eggleston to make payment, then Eggleston will be held to have received such notice, and the plaintiffs will not be entitled to recover. The onus or burden of proof of such notice having been given is on the defendant.' The defendant excepted to so much of said charge as is included in brackets.

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

The plaintiff in error was under no obligation to keep a local agent in the vicinity of the residence of the assured, and give him notice thereof. The premiums on his policy were payable at the domicile of the company. Insurance Company v. Davis, 95 U.S. 425.

If the defendants in error sought to excuse the payment when due, on the ground that it was the custom or usage of the company to notify the holders of policies where and to whom to pay, they should have proved on the trial that such was known to be the general usage and custom of the company, or a particular usage of universal notoriety at the place where the insurance was effected. Adams v. Otterback, 15 How. 539.

The case does not show that the assured intended to pay the premium falling due Nov. 11, 1871, or that he made any effort, prior to its maturity, to ascertain to what agent he should make payment. On the contrary, the presumption is, that, after his death became imminent, his friends took the matter in hand, and attempted to revive the policy for the benefit of his children. The agent was, therefore, independently of the express words of the policy, justified, both in law and in fair dealing, in refusing to waive the forfeiture.

The fact that the agents of the company had notified the assured to whom to make payment of particular premiums which became due prior to Nov. 11, 1871, was not such an act on the part of the company as acmounted to a permission to him not to make payment until notified.

The agent could not waive payment until notice was given by him to whom and where to pay it. On the contrary, the policy expressly prohibited him from so doing.

This provision cannot be set aside upon any act of the agent and the assured. It is as much a part of the contract as any other. Chase v. Hamilton Insurance Co., 20 N. Y. 52; Buffum v. Fayette Mutual Insurance Co., 3 Allen (Mass.), 360; New York Life Insurance Co. v. Statham et al., 93 U.S. 31.

Mr. Philip Phillips, contra.

There was no error in the charge of the court below. The obligation to give the assured notice where and when to pay premiums, can arise from the actions of the company, as well as from express words.

The principle that no one shall be permitted to deny that he intended the natural consequences of his acts, when he has induced others to rely on them, is as applicable to an insurance company as to an individual.

The doctrine of waiver, as asserted against such a company, to prevent the strict enforcement of conditions contained in its policy, is only another form for the doctrine of estoppel. Insurance Company v. Wolff, 95 U.S. 326.

That the assured acted in good faith, and was ready and anxious to continue the policy, is abundantly established by the evidence. He had the strongest inducement to do this, from the precarious condition of his health. His anxiety is shown by his prompt and repeated efforts to ascertain the agent to whom the payment was to be made.

The policy does not stipulate where the premiums were to be paid. The law of Mississippi, made for the convenience and security of its citizens, requires insurance companies to have agents in the State, and defines their duties and responsibilities. Rev. Code, 1857, p. 303, sects. 57-59.

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

title: Insurance Company v. Eggleston


text: Talk:Insurance Company v. Eggleston

title: Talk:Insurance Company v. Eggleston


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Insurance Company v. Eggleston/Opinion of the Court

We have recently, in the case of Insurance Company v. Norton (supra, p. 234), shown that forfeitures are not favored in the law; and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted. Any agreement, declaration, or course of action, on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture. The representations, declarations, or acts of an agent, contrary to the terms of the policy, of course will not be sufficient, unless sanctioned by the company itself. Insurance Company v. Mowry, supra, p. 544. But where the latter has, by its course of action, ratified such declarations, representations, or acts, the case is very different.

In the present case, it appeared that the company had discontinued its agency at the place of residence of the insured soon after the policy was issued; and had given him notice by mail, from time to time, as the premium instalments became due, where and to whom to pay them,-sometimes at Savannah, several hundred miles, and sometimes at Vicksburg, a hundred and fifty miles, from his residence. Such notice, it would seem, had never been omitted prior to the maturity of the last instalment. The effect of the judge's charge was, that if this was the fact, and if no such notice had been given on that occasion, and the failure to pay the premium was solely due to the want of such notice, it being ready, and being tendered as soon as notice was given, no forfeiture was incurred. We think the charge was correct, under the circumstances of this case. The insured had good reason to expect and to rely on receiving notice to whom and where he should pay that instalment. It had always been given before; the office of the company was a thousand miles away; and they had always directed him to pay to an agent, but to different agents at different times.

Although, as we held in he case of Insurance Company v. Davis (95 U.S. 425), the legal effect of a policy, when nothing appears to the contrary, may be that the premium is payable at the domicile of the company; yet it cannot be expected or understood by the parties that the policy is, in ordinary circumstances, to be forfeited for a failure to tender the premium at such domicile, when the insured resides in a distant State, and has been in the habit, under the company's own direction, to pay to an agent there, and has received no notice that the contrary will be required of him. He would have a just right to say that he had been misled.

Let us look at the matter as it stands. The business of life insurance is in the hands of a few large companies, who are generally located in our large commercial cities. Take a company located, like the plaintiff in error, in New York, for example. It solicits business in every State of the Union, where it is represented by its agents, who issue policies and receive premiums. Could such a company get one risk where it now gets ten, if it was expected or understood that it was not to have local agents accessible to the parties insured, to whom premiums could be paid, instead of having to pay them at the home office in New York? The universal practice is otherwise. Local agents are employed. The business could not be conducted on its present basis without them. Now, suppose the local agent is removed, or cease to act, without the knowledge of the policy-holders, and their premiums become due, and they go to the local office to pay them, and find no agent to receive them; are these policies to be forfeited? Would the plaintiffs in error, or any other company of good standing, have the courage to say so? We think not. And why not? Simply because the policy-holders would have the right to rely on the general understanding produced by the previous course of business pursued by the company itself, that payment could be made to a local agent, and that the company would have such an agent at hand, or reasonably accessible. We do not say that this course of business would alter the written contract, or would amount to a new contract relieving the parties from their obligation to pay the premium to the company, if they can find no agent to pay to. That obligation remains. But we are dealing with the question of forfeiture for not paying at the very day; and, in reference to that question, it is a good argument in the mouths of the insured to say, 'Your course of business led us to believe that we might pay our premiums at home, and estops you from exacting the penalty of forfeiture without giving us reasonable notice to pay elsewhere.' The course of business would not prevent the company, if it saw fit, from discontinuing all its agencies, and requiring the payment of premiums at its counter in New York. But, without giving reasonable notice of such a change, it could not insist upon a forfeiture of the policies for want of prompt payment caused by their failure to give such notice. In the case of Insurance Company v. Davis, cited above, the agent's powers were discontinued by the occurrence of the war, of which all persons had notice; and the law of the non-intercourse between belligerents prevented any payment at all; and the policy became forfeited and ended without any fault attributable to either of the parties. That case, therefore, was entirely different from the present; and it was in consequence of such forfeiture in the absence of fault that we held, in the case of New York Life Insurance Co. v. Statham et al. (93 U.S. 24), that the insured was entitled to recover the equitable value of his policy.

In the present case, it seems to us that the charge of the judge was in substantial conformity to the principles we have laid down. The insured, residing in the State of Mississippi, had always dealt with agents of the company, located either in his own State or within some accessible distance. He had originally taken his policy from, and had paid his first premium to, such an agent; and the company had always, until the last premium became due, given him notice what agent to pay to. This was necessary, because there was no permanent agent in his vicinity. The judge rightly held, that, under these circumstances, he had reasonable cause to rely on having such notice. The company itself did not expect him to pay at the home office: it had sent a receipt to an agent located within thirty miles of his residence; but he had no knowledge of this fact,-at least, such was the finding of the jury from the evidence.

We think there was no error in the charge, and the judgment of the Circuit Court must be

Affirmed.


text: Talk:Insurance Company v. Eggleston/Opinion of the Court


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Bissell v. Heyward

APPEAL from the Circuit Court of the United States for the District of South Carolina.

William C. Heyward, who was seised in fee of certain lands in the State of South Carolina, made his last will and testament, bearing date Jan. 20, 1852. So much thereof as relates to them is as follows:--

'I give to my brother, Henry Heyward, of New York' (here is a description of the lands), 'for and during the term of his natural life, and, after the determination of that estate, I give the same to my friend, William C. Bee, and his heirs, to prevent the contingent remainders hereinafter limited from being barred; in trust, nevertheless, during the lifetime of my said brother, to apply the income thereof to his use and benefit; and, from and after his decease, I give the use of the same estate, real and personal, to his eldest son, Henry Heyward, Jr., if then living, until he attains the age of twenty-one years; and if he should survive his father, and attain the age of twenty-one years, to him and his heirs for ever: but in case the said Henry Heyward, Jr., should not survive his father, and attain the age of twenty-one years, then I give the whole of the said estate, real and personal, after the decease of my brother, Henry Heyward, for the use of the person who may thereafter, from time to time, sustain the character of heir male of the body of my said brother, Henry Heyward, as such term was used in the common law before the abolition of the rights of primogeniture, until such person shall attain the age of twenty-one years, or the expiration of twenty-one years from the death of my said brother, whichever may first happen; and, after the happening of either of those events, to the then heir male of the body of my brother, absolutely and for ever.'

On the eighteenth day of Jane, 1863, William C. Heyward contracted to sell, for $120,000, said lands, to John B. Bissell; who took immediate possession of them, which he has ever since retained. On July 31, following, he paid $20,000 of the purchase-money. During that year, and before the completion of the purchase, Heyward died, and said Bee, appointed the executor of his will, duly qualified as such. Owing to the civil war and other causes, matters remained unaltered in their main features until March, 1870, when said Henry Heyward, a citizen of New York, filed his bill against said Bissell and said Bee, citizens of South Carolina, to compel the specific performance, by Bissell, of his agreement to purchase. The answer of Bissell admits the agreement and his possession of the property, and his payment of $20,000; and alleges that he was provided with the means of paying the balance of the purchase-money; that neither said William C. Heyward, nor, since his death, said Bee, tendered him a conveyance; and that he was willing to pay when he should receive a valid conveyance; that he sold sixty-three bales of cotton, for cash in Confederate notes, and on Feb. 11, 1864, tendered the said balance, in said notes, to the executor, who declined to receive them, on the ground that he could not make a good title. Bee, in his answer, admitted the tender to him by Bissell, and his refusal to accept it, on the ground that he was advised that he could neither make a title nor safely accept payment in Confederate currency. It was admitted, on the hearing below, that said money was tendered at that date, in such currency; that the parties through whom a good title could be made lived in New York; and that, after Bee's refusal to accept the notes tendered, Bissell used them for other purposes.

It does not appear by the pleadings, the evidence, or the agreed statement of facts on file, whether Henry Heyward, Jr., who was living when the bill was filed, and had then attained the age of twenty-one years, is now living. There is neither allegation nor proof of his death.

The court decreed that Bissell should perform his contract of purchase, and pay, in United States currency, a sum equal to the value of $100,000 in Confederate currency on June 18, 1863, the day of sale, with interest thereon until Feb. 11, 1864; from and after which day he should pay interest only on such a sum as was the value of $100,000 on said 18th of June, less its value on said 11th of February; said values and interest to be ascertained by the clerk of the court to whom the cause was referred, as master, to state and report the same: that upon Bissell's making the payment as stated and reported, that the clerk, 'as master to said William C. Bee, executor of William C. Heyward,' convey the premises in fee-simple; but that, upon his failure so to pay, the master should sell the property, at public auction, for cash.

Said Henry Heyward died before the execution of the decree. On Nov. 23, 1874, Zefa Heyward, his wife, Zefita Heyward, his daughter, and Frank Heyward, his son, filed their bill of revivor, reciting the original bill, the proceedings thereunder, the reference to the master, the death of said Henry,-leaving a last will and testament, which was duly proved before the surrogate of the county of New York,-their appointment to execute the same, and that said Zefa alone took upon herself the execution thereof, and qualified accordingly, and praying that the bill might be revived. This bill was duly served; no answer was made, and an order of revivor was entered accordingly.

The master subsequently reported that the balance found by him to be due upon the contract was $28,353.50; and that, in reaching that result, he compared the value of the Confederate currency, in which the contract was payable, with United States paper currency at the date of the contract and of the tender. He found that, on the 18th of June, 1863, $1 in United States currency was worth $5.20 in Confederate currency; and that on the 14th of February, 1864, the value was $1 to $13.01. The court confirmed the report, Dec. 15, 1874; and decreed that the interlocutory decree previously rendered be carried into execution. Bissell thereupon appealed to this court, Bee declining to join in the appeal.

Mr. William A. Maury for the appellant.

When a vendor of real estate dies before he has received the purchase-money and made a conveyance, the bill against the vendee to enforce his specific performance of the contract must be filed by the personal representative of the vendor. Dart, Vendors, 468; Story, Eq. Pl., sects. 160-177.

Heyward, the original complainant, was but a life-tenant. The two contingencies on which the remainder to his son depended had not both happened; for, although the son had attained his majority, the other condition, of his surviving his father, had not happened at the filing of the bill. Nor had the executor then any estate. His remainder, as trustee to preserve the contingent remainders, was itself still contingent; for Henry Heyward's life-estate was not spent, and if his son should survive his father, and so his estate become vested, there would no longer be any call for a trustee to preserve remainders. It comes to this, then, that the fee had descended to the testator's heir-at-law. 1 Fearne, pp. 353-355. The bill does not aver who is that heir, so that (according to the case thereby made) the fee is not represented. Again, the will, by the testator's sale to Bissell, was in equity revoked; and, although it has still operation at law, those taking, as devisees, the title of the estate sold, would be held by equity as trustees for the purchaser. It is apparent, therefore, that Henry Heyward had no beneficial interest whatever in or touching the lands when he filed the bill; and his representatives, in whose name the suit was revived, had no interest. His will is not in evidence, and it is impossible to say what was the character of that instrument. Besides, the bill of revivor avers that Zefa Heyward alone qualified as executrix.

Henry Heyward being now dead, his son, Henry Heyward, Jr., who, according to the bill, was of age,-is, if alive, seised of the fee; but he is not a party to this suit. It would seem, then, that the bill is fatally defective as to parties.

There is a total failure by the original complainant to show a performance of the contract by the tender of a conveyance by the representatives of the vendor. Prothro v. Smith, 6 Rich. (S.C..) Eq. 324.

The value of United States currency between the dates when $20,000 was paid and the balance of the purchase-money tendered was variable and fluctuating; and gold coin was the only proper standard by which to measure the value of Confederate notes, in which the contract was solvable. They were, as declared in Planters' Bank v. Union Bank (16 Wall. 502), 'a commodity, not money;' and the tender of them, with no other objection on the part of the creditor than that he could neither safely accept them nor make a good title, discharged the debt. 2 Pars. Contr., pp. 163-165. At the utmost, Bissell, after making the tender, was only liable to the estate as a bailee of the notes, and the whole function of the court was limited to determining what that liability was.

Mr. Edward McCrady, contra.

It is settled in South Carolina, that, where, after a devise, land has been sold by the testator, the devisee takes the estate in trust for the purchaser, and is the proper party to convey. Rose v. Drayton, 4 Rich. (S.C..) Eq. 260. In the present case, there was no devise in fee directly to any one. There was a devise for life, and the appointment of a trustee to preserve the contingent remainders limited after the determination of that estate. Under these circumstances, the safest mode of conveying was through the instrumentality of a court of equity. This bill was therefore filed, as Bissell then held and still holds possession; claiming the lands under his contract, and only raising the question as to what was due thereon. His taking possession thereunder must be regarded as a waiver of objection to the title of William C. Heyward. No question is, however, made as to that title; and Henry Heyward's allegation in the original bill, that his feoffment, with livery of seisin, and a release by Bee, would have absolutely transferred that title; and that he offered so to transfer it to Bissell is not denied in the answer. There has been, therefore, no default whatever on the part of the vendor or his representatives.

The notes of the Confederate States must be considered in the same light as if they had been issued by a foreign government temporarily occupying a part of the territory of the United States, and their value was properly scaled to that of the legaltender notes of the United States. Dooley v. Smith, 13 Wall. 604; Thorington v. Smith, 8 id. 1.

The tender in February, 1864, relied on by the appellant to discharge the debt, was not kept good after that date; and did not, therefore, even discharge interest and costs. Giles v. Hart, 3 Salk. 343; Sweatland v. Squires, 2 id. 623.

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

title: Bissell v. Heyward


text: Talk:Bissell v. Heyward

title: Talk:Bissell v. Heyward


text:
Bissell v. Heyward/Opinion of the Court

It is objected that there is a fatal defect of parties complainant. The point of this objection is that Henry Heyward and William C. Bee were not able together to make a title that ought to be satisfactory to Bissell, and hence that the decree should be reversed.

The will of William C. Heyward took effect only upon his death. Until the occurrence of that event, the devisees therein named had no more title to or interest in the property in question than if their names had not been mentioned in the will. If he had consummated his contract with Bissell by executing a deed of the property, this would have worked an absolute revocation of the devise as to this property. The execution of the contract (with the partial payment thereon) was a transfer in equity of the title of the land to Bissell; leaving in the representatives of William C. Heyward simply a naked title as trustee for Bissell, to be conveyed upon performance on his part. By the terms of the will, this legal title was vested in William C. Bee, the trustee to preserve remainders.

Henry Heyward was tenant for life, and as such offered to convey to Bissell, 'by feoffment, and livery of seisin, and to procure the release of right of entry and action by William C. Bee, the remainder-man for preserving contingent remainders;' and he avers in his bill that this would have made a good and effectual conveyance of the legal estate.

Bee held the legal title under the will, and his title to the legal estate continued in force as long as the remainders were contingent; and there is nothing in any part of the record showing that such was not the condition of the title when Heyward offered to convey, and that it is not so at the present time.

Chancellor Kent says (Com., vol. iv. p. 256), 'The trustees are entitled to a right of entry in case of a wrongful alienation by the tenant for life, or whenever his estate for life determines in his lifetime by any other means. The trustees are under the cognizance of a court of equity, and it will control their acts, and punish them for a breach of trust; and if the feoffment be made by the purchaser with notice of the trust, as was the fact in Chudleigh's Case, a court of chancery will hold the lands still subject to the former trust. But this interference of equity is regulated by the circumstances and justice of the particular case. The court may, in its discretion, forbear to interfere; or it may and will allow, or even compel, the trustees to join in a sale to destroy the contingent remainder, if it should appear that such a measure would answer the uses originally intended by the settlement.' To this he cites many authorities.

We think this objection is not well taken.

Was there error in the amount decreed to be paid?

One of the statements of fact in the case sets forth that Bissell tendered the money; and fails to state that he deposited it, or in any manner set it apart or appropriated it for the purpose of the tender. The other states that he used the money he had thus provided. The legal effect is the same. To have the effect of stopping interest or costs, a tender must be kept good; and it ceases to have that effect when the money is used by the debtor for other purposes. Roosvelt v. The Bull's Head Bank, 45 Barb. (N. Y.) 579; Giles v. Hart, 3 Salk. 343; Sweatland v. Squire, 2 id. 623.

The defendant insists that the value of the Confederate notes should be reduced to gold or sterling exchange, which would still farther depreciate their value.

This objection cannot be sustained. By the laws of the United States, all contracts between individuals could then be lawfully discharged in the legal-tender notes of the United States. These notes, and not gold or sterling exchange, were the standard of value to which other currencies are to be reduced to ascertain their value. Knox v. Lee, 12 Wall. 457; Thorington v. Smith, 8 id. 1; Dooley v. Smith, 13 id. 604; Rev. Stat. So. Car., p. 285.

Confederate notes, although without the authority of the United States, and, indeed, in hostility to it, formed the only currency of South Carolina at the date of the transactions in question. United States currency was unknown, except when found upon the person of the soldiers of the United States taken and held as prisoners.

Confederate notes can in no proper sense be treated as commodities merely. The contract in question was made payable in terms in dollars; but both parties agree in writing that Confederate-note dollars were intended. The $20,000 was paid in Confederate notes; and, when the defendant tendered his $100,000, he tendered it in Confederate notes as dollars, and he obtained them by selling sixty-three bales of cotton for Confederate dollars. Stewart v. Salamon, 94 U.S. 434.

Decree affirmed.

title: Bissell v. Heyward/Opinion of the Court


text: Talk:Bissell v. Heyward/Opinion of the Court


text:
Insurance Company v. Brune's Assignee

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

The facts are stated in the opinion of the court.

Mr. Henry E. Davies and Mr. Edward O. Hinckley for the appellant. Mr. F. W. Brune and Mr. J. M. Harris, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Insurance Company v. Brune's Assignee


text: Talk:Insurance Company v. Brune's Assignee


text:
Insurance Company v. Brune's Assignee/Opinion of the Court

This was a bill by the Mutual Life Insurance Company of New York for an injunction upon Horatio L. Whitridge, assignee of William H. Brune, enjoining him against further prosecuting two actions at law which he had commenced in the Circuit Court of the United States for the District of Maryland, against the complainant, upon two policies of insurance issued by it, in the name of William H. Brune, the 18th of January, 1872, on the life of John S. Barry; one for $20,000, and the other for $5,000.

The material averments of the bill are the following:--

1. That the complainant, a New York corporation, on the 11th of January, 1867, issued a policy of life insurance to Rosalie C. Barry, wife of John S. Barry, for $20,000, on the life of her husband; and on the 9th of December, 1870, issued to her a second policy, on the same life, insuring $5,000.

2. That the premiums were regularly paid until December, 1871, and January, 1872.

3. That about the latter part of December, 1871, and the beginning of January, 1872, an agreement was made between Mrs. Barry, Mr. Barry, and Mr. Brune, for the assignment or transfer of the policies to the latter, and that in pursuance of the agreement, and in accordance with a mode of proceeding before used by the complainant in cases of insurance on the lives of married women, the policies were permitted, with the consent of all parties interested, except the complainant, to lapse,-that is to say, to become forfeited,-with the intent, however, to have the same renewed or reissued in Brune's name.

4. That, as evidence of such intention, Brune (as whose assignee Whitridge, the defendant, claimed) united with John S. Barry in signing a paper called 'a declaration to be made and signed in case of issuing new policy after lapse,' dated Dec. 16, 1871, referring to and adopting the original application made by Mrs. Barry for insurance, dated Dec. 9, 1870, and signed by her; that he also united with Mr. Barry in signing another paper, dated Jan. 12, 1872, adopting Mrs. Barry's original application for insurance, dated Jan. 11, 1867.

5. That Mr. Barry did not undergo a new medical examination; that no other applications were made for the two insurances (upon which the suits were brought) than those made by Mrs. Barry in 1867 and 1870, and so, as aforesaid, adopted by Mr. Brune; and that thereupon the two policies issued to Mrs. Barry were surrendered and cancelled.

6. That, at the time when the original policies issued to Mr. Barry were cancelled, two others for the same amount, on the life of the said John S. Barry, were substituted therefor: that they were issued to William H. Brune with like premiums and having the same numbers as those of the cancelled policies; differing only in the fact that the premiums were made payable semi-annually, instead of annually as theretofore, and that Brune paid up the premiums that had before fallen due and that remained unpaid.

7. That in February, 1872, Brune assigned these policies to Whitridge (Harris being now substituted as Brune's assignee or trustee in place of Whitridge).

8. That John S. Barry died in March, 1872.

9. That shortly after, or about April 4, 1872, Mrs. Barry filed, in the Supreme Court for the city and county of New York, her bill of complaint against the complainant in this bill, and against both Brune and Whitridge, in which she alleged substantially what is hereinbefore set forth, and also complained that the novation of the policies, or the lapsing and reissue as aforesaid, was without her consent; that it was done after her signing some paper by reason of certain persuasions of her husband when he was embarrassed in business and disturbed in mind; that she did not act voluntarily and freely; that Brune acquired no rights under the said new policies, nor did Whitridge by the assignment to him; and she prayed the company might be enjoined against paying to Whitridge the amounts due thereon.

The bill and proceedings in the New York case were filed, and made a part of the present complainant's bill.

10. That, as appeared in those proceedings, pursuant to an agreement of the parties and an order of the court, this complainant, the insurance company, deposited the sums named in the two policies in a trust company, to the credit of the case; and the court ordered that the complainant should be discharged, and that the action should be discontinued as to it.

11. That, notwithstanding the agreement and order and the payment, Whitridge, the defendant, had afterwards, in September, 1872, brought two suits on the two new policies in the Circuit Court of the United States for the District of Maryland, the same suits the prosecution of which the complainant sought by this bill to have enjoined.

12. That the prosecution of these suits, if successful, would result in compelling the complainant to pay the same policies twice, and might give to Whitridge double payment.

Most of the material averments of this bill were admitted by the answer. It averred, in addition, that the original policies were assigned to Brune as collateral securities for loans Brune had made to Mr. Barry, and that the permitted lapse and the issue of the new policies were intended only to make the assignment effective. It denied, however, that the new policies were in substitution for the policies surrendered, and asserted that they were separate and new contracts. It admitted the execution of the agreement or stipulation in the New York case; but alleged that it was without Brune's knowledge or consent, and alleged also that it was not intended to surrender or affect in any way the right of the defendant under the two policies issued to Brune and assigned to him.

Such was the case when it came on for hearing; the parties having agreed that Mrs. Barry's bill of complaint might be read, as also the answers of Brune and Whitridge thereto, the stipulation made in the case, the order of the court that the company pay the amount of the policies, less the costs, into court, a subsequent order abrogating the former and the stipulation, together with a pending appeal therefrom.

Upon this showing, the Circuit Court refused the injunction asked for, and dismissed the complainant's bill. We agree with the counsel for the appellee, that whether the Circuit Court erred or not must be determined in view of the facts as they appeared when the decision was made. But we do not admit, as it is argued, that Mrs. Barry in her bill claimed only what was assured to her by the original policies. She claimed a decree against the insurers, that they should pay to her. She asserted that the original policies had been surrendered and cancelled, and she claimed that Brune and Whitridge were asserting rights adverse to hers. She charged in effect that the assignments of those policies she had made had been obtained from her by duress, through misrepresentation, and without any present consideration. The surrender and reissue to Brune concerted between him and Mr. Barry, the payment of the premium of the substituted policies with Mr. Barry's dividends and money, the identity of the numbers of the new policies with those of the old, and the fact that the stipulated premiums were the same, adjusted according to the age of Mr. Barry when the first policies were granted, and paid from the times when under those policies they were due,-were set forth as proofs that the substituted ones were only continuations of the first insurance, and that in equity they were her property. Neither Brune's nor Whitridge's answer, both of which were in evidence, effectually controverted this. Brune's substantially admitted it. In his answer, he everywhere speaks of himself as the assignee of the original policies, asserts Mrs. Barry's assignments as the foundation of his right, alleges that the polices were suffered to lapse and were surrendered, that they might be renewed and continued for his benefit, and alleges expressly that 'the two policies issued in January, 1872, constituted the only claim on the said Mutual Life Insurance Company, on account of insurance on the life of the said Barry, and that the plaintiff has no claim whatsoever to the said policies, or either of them, or to the sums secured thereby, until the indebtedness of the said Barry and of his firm, to secure which the said policies were assigned as aforesaid, shall have been fully paid and satisfied.' Thus the answer implies a clear admission, that in equity Mrs. Barry is the owner of the new policies, subject only to Brune's right (whatever it may be) to hold them as a collateral security.

The case in the New York Supreme Court, therefore, involved the same controversy as that exhibited in the two Maryland suits; and the complainant here and Whitridge are parties in each. Alike in the bill and in the action at law, it is a vital question whether the insurers are liable for the sums insured by the policies of January, 1872, and whether they are liable to Whitridge as assignee of Brune. Hence, if there were a final decree in the New York case against the complainant here, the present appellee would necessarily fail in the action he has brought in Maryland. That decree would be pleadable in bar to his suits, and the complainant would have complete protection at law.

But the difficulty in the appellant's way is, that, when this case was heard in the court below, the record of the New York case exhibited no final decree. The order that the amount of the policies might be paid into the trust company to the credit of the case, and that the company should be discharged, had been set aside; and the money paid under the order had been directed to be returned. All that appeared, then, was that a bill in equity was pending in a foreign jurisdiction, when the appellee's suits at law were brought to enforce the payment of the policies to Mrs. Barry, rather than to Brune or his assignee, and that both the present complainant and the present defendant were parties to that bill.

This, we think, was not sufficient to justify the injunction for which the appellant prayed. At law, the pendency of a former action between the same parties for the same cause is pleadable in abatement to a second action, because the latter is regarded as vexatious. But the former action must be in a domestic court; that is, in a court of the State in which the second action has been brought. Maule v. Murray, 7 T. R. 470; Buckner v. Finley, 2 Pet. 586; Browne & Seymour v. Joy, 9 Johns. (N. Y.) 221; Smith et al. v. Lathrop et al., 44 Pa. St. 326.

The rule in equity is analogous to the rule at law. Story, Eq. Pl., sect. 741. In Foster v. Vassall (3 Atk. 587), Lord Hardwicke said: 'The general rule of courts of equity with regard to pleas is the same as in courts of law, but exercised with a more liberal discretion.' In Lord Dillon v. Alvares (4 Ves. 357), a plea of a pending suit in a court of chancery in Ireland was overruled in the English Court of Chancery. Certain it is that the plea of a suit pending in equity in a foreign jurisdiction will not abate a suit at law in a domestic tribunal. This was shown in a very able decision made by the Supreme Court of Connecticut, in Hatch v. Spofford (22 Conn. 485), where the authorities are learnedly and legically reviewed. See also 7 Metc. (Mass.) 570, and 16 Vt. 234.

If, then, a bill in equity pending in a foreign jurisdiction has no effect upon an action at law for the same cause in a domestic forum, even when pleaded in abatement; if, still more, it has no effect when pleaded to another bill in equity, as the authorities show,-it is impossible to see how it can be a basis for an injunction against prosecuting a suit at law. It follows that the refusal of an injunction by the Circuit Court was not erroneous.

It is contended, however, that if the appellant was not entitled to the injunction asked for, the bill should not have been dismissed, but that it should have been retained, until the final disposition of the case in New York. The Supreme Court in that State having first obtained possession of the subject-matter of the controversy, as well as jurisdiction of the parties, it is argued, had a right to proceed to a final determination. In view of this fact, we concede the Circuit Court might have retained this bill. It does not appear, however, that such a retention was asked. Nor was it necessary for the purposes of justice. As we have already remarked, if a final decree be made by the Supreme Court, it will, if pleaded, be a bar in the Maryland courts; and if a judgment be rendered in the latter, the New York court, having jurisdiction of the parties, will be able to determine to whom in equity the judgment belongs.

Decree affirmed.


text: Talk:Insurance Company v. Brune's Assignee/Opinion of the Court


text:
Railroad Company v. Collector (96 U.S. 594)

MOTION to tax the expense of printing the record as part of the costs in this case.

Mr. James K. Edsall in support of the motion.

Mr. Joseph E. McDonald and Mr. R. P. Ranney, contra.

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


text: Talk:Railroad Company v. Collector (96 U.S. 594)


text:
Railroad Company v. Collector (96 U.S. 594)/Opinion of the Court

The first appropriation by Congress to pay the expense of printing the records of this court was made June 27, 1834. 4 Stat. 695. Since that time until the present term the printing has been done by the government, without charge to litigants. In the appropriation act of the last Congress, however, passed March 3, 1877, it was provided as follows:--

'And there shall be taxed against the losing party in each and every cause pending in the Supreme Court of the United States, or in the Court of Claims of the United States, the cost of printing the record in such case, which shall be collected, except when the judgment is against the United States, by the clerks of said courts respectively, and paid into the treasury of the United States; but this shall only apply to records printed after the 1st of October next.' 19 Stat. 344.

This provision is still in force, so that now the cost of printing all records in this court paid by the government must, by law, be taxed to the losing party.

The appellee caused the record in this case to be printed after Oct. 1, at his own expense, as the congressional appropriation was exhausted before it became necessary to do the work. The cost was no greater than it would have been at the government printing-office. Under these circumstances, as the decree below has been affirmed, we think the motion should be granted, and therefore order that the amount paid by the appellee for printing the record in this case be taxed against the appellant.

Motion granted.


text: Talk:Railroad Company v. Collector (96 U.S. 594)/Opinion of the Court


text:
Edwards v. Kearzey

ERROR to the Supreme Court of the State of North Carolina.

This action was commenced by Leonidas C. Edwards, March 31, 1869, in the Superior Court of Granville County, North Carolina, against Archibald Kearzey, to recover the possession of certain lands in that county. They were levied upon and sold by the sheriff, by virtue of executions sued out upon judgments rendered against Kearzey, on contracts which matured before April 24, 1868, when the Constitution of North Carolina took effect, the tenth article of which exempts from sale under execution or other final process, issued for the collection of any debt, the personal property of any resident of the State, and 'every homestead, and the dwelling and buildings used therewith, not exceeding in value $1,000, to be selected by the owner thereof.' Prior to that date, under statutes since repealed, certain specified articles of small value, and such other property as the freeholders appointed for that purpose might deem necessary for the comfort and support of the debtor's family, not exceeding in value $50 at cash valuation, and fifty acres of land in the county and two acres in the town of not greater value than $500, were exempt from execution. The lands in question were owned and occupied by Kearzey as a homestead, and as such were set off to him pursuant to the mode prescribed by the legislation for carrying the constitutional provision into effect. He had no other lands, and they did not exceed $1,000 in value.

Edwards was the purchaser at the sheriff's sale of said lands, and received a deed therefor.

The court found for Kearzey, upon the ground that so much of said art. 10 as exempts from sale, under execution or other final process obtained on any debt, land of the debtor of the value of $1,000, and the statutes enacted in pursuance thereof, embrace within their operation executions for debts which were contracted before the adoption of said Constitution; and that said article and said statutes, when so interpreted and enforced, are not repugnant to art. 1, sect. 10, of the Constitution of the United States, which ordains that no State shall pass any law impairing the obligation of contracts.

Judgment having been rendered upon the finding, it was, on appeal, affirmed by the Supreme Court of the State. Edwards then sued out this writ of error.

Mr. Joseph B. Batchelor and Mr. Edward Graham Haywood for the plaintiff in error.

A law of a State, which is impeached upon the ground that it impairs the obligation of a contract, derives no additional authority as against the prohibition of the Federal Constitution, by reason of the fact that it is embodied in a State Constitution. Railroad Company v. McClure, 10 Wall. 511; White v. Hart, 13 id. 646; Gunn v. Barry, 15 id. 610; Jefferson Branch Bank v. Skelly, 1 Black, 436; Dodge v. Woolsey, 18 How. 331.

Such a law, exempting from sale under execution any substantial part of the debtor's property not so exempt at the time the debt was contracted, impairs the obligation of the contract, and is repugnant to the Constitution of the United States, and void. Gunn v. Barry, supra; Nichols's Assignee v. Eaton et al., 91 U.S. 716; Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id. 608; Planters' Bank v. Sharp, 6 id. 301; Von Hoffman v. Quincy, 4 Wall. 535; Lessley v. Phipps, 49 Miss. 790; The Homestead Cases, 22 Gratt. (Va.) 266.

The decisions of this court have given a uniform construction to the constituional provision which prohibits a State from passing any law impairing the obligation of contracts. From them the following propositions are adduced:--1. The obligation of a contract is the duty of performance according to its terms, the remedy or means of enforcement being a part of the 'obligation,' which the States cannot by legislation impair. The municipal law enters into and forms a part of this obligation, and to that the contracting parties must be considered as referring, in order to enforce performance.

2. The State, if it modifies the remedy, must provide one as efficient and substantial as that subsisting when the contract was made.

3. The remedy is inseparable from the obligation, otherwise the contract would be of the nature of those imperfect obligations or moral duties, subject to the mere caprice and will of individuals.

4. Whilst the State is left free to prescribe the modes of suit and forms of process, it cannot clog the remedy with conditions and restrictions so as materially to impair its efficiency. Fletcher v. Peck, 6 Cranch, 87; Green v. Biddle, 8 Wheat. 1; Sturges v. Crowninshield, 4 id. 122; Ogden v. Saunders, 12 id. 213; Broson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 id. 608; Curran v. Arkansas, 13 id. 304; Freeman v. Howe, 24 id. 450; Von Hoffman v. Quincy, 4 Wall. 535; Hawthorne v. Calef, 2 id. 10; White v. Hart, 13 id. 646; Gunn v. Barry, 15 id. 610; Walker v. Whitehead, 16 id. 314.

Mr. A. W. Tourgee, contra.

The decided cases to not affirm that the obligation of a contract includes the whole remedy, 2 Kent, Com. 397; 3 Story, Com., sect. 1392; Sturges v. Crowinshield, 4 Wheat. 122; Mason v. Haile, 12 Id. 370; Beers v. Haughton, 9 Pet. 329; Cook v. Moffat, 5 How. 295; but, on the contrary, courts have declared that the remedy is no part of the obligation. Moore v. Gould, 11 N. Y. 281; Jacobs v. Smallwood, 63 N. C. 112; Hill v. Kessler, id. 437; Garrett v. Cheshire, 69 id. 396; Wilson v. Sparks, 72 id. 208; Edwards v. Kearzey, 75 id. 409. The precise question which this record presents may therefore be considered an open one. The homestead provision of the Constitution of North Carolina does not deny the creditor's right, but regulates the manner in which it shall be enforced.

It affects his remedy only incidentally, in the performance of a high public behest. The safety and health of the Commonwealth are above private right. The sacredness of private property must yield to the imperious demands of public necessity. When two rights are in conflict, the greater must prevail. Munn v. Illinois, 94 U.S. 113; Chicago, Burlington, & Quincy Railroad Co. v. Iowa, id. 155; Peik v. Chicago & North-Western Railway Co., id. 164.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Edwards v. Kearzey


text: Talk:Edwards v. Kearzey

title: Talk:Edwards v. Kearzey