text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1880

 lncom,Taz, Titl, 1, RfJlleftu, Act 0/19!8- Continued. net income deductions allowed; exempt interest______________________ _ exchange, etc., of property _________. specific money credit to domestic Uni~m--b~i-by -i;r~igJi companies.. ____ ____ ____ ____ ___ _ no duplications__________________ "_ special deductions for net losses____ _ credit for foreign taxes alloWed domestic companies _____ ~ _ __ _ _ gross income determined_____________ _ tax on mutual insurance companies other than life________________ _ rates ae other corporations________ _ gross income of mutual marine com- panies designated_____________ _ additional deductions allowed; in addition to reserve fund______ _ policy and annuity contracts ____ _ mutual marine companies, repay- ment_________________________ _ companies other than life or ma- rine; premium deposits returned_ nonresident alien individuals_________ _ normal tax on, if not resident of contiguous country____________ _ residents in contiguous countries; comJ?8nsation for personal serv- ices m United States__________ _ additional if net income exceeds family credits $4,000-- __ ___ __ _ _ on excess thereof________________ _ in lieu of other tax___________ --- gross income, includes only from United States sources _________ _ earnings from foreign ships, etc., exempt______________________ _ deductions allowed on income from United States sources _________ _ losses not connected with business_ casualty losses not connected with business_____________________ _ charitable contributions to do- mestic corporations, etc________ _ personal exemptions; for depend- ents, if of contiguous countries__ deductions and credits allowed; tax withheld at source____________ _ credits against taxes of foreign governments not aIlowed.. _ __ _ _ _ time for filing and paying_________ _ withholding at source___________ _ foreign corporations ________________ _ gross income includes only from United States sources ______________,__ exemptionsof ships underforeign ftag_ deductions allowed on income from United States sources; appor- tionment____________________ _ benefit of, by filing returns of all United States income ________ _ no credit for taxes of foreign governments________________ _ filing returns and payment of tax __ _ withheld tax at source__________ _ foreign corporations not deemed affili- ated with any other corporation_ possessions of the United States_____ _ gross income of citizens, etc., deemed from sources within United States______________________ _ INDEX. cxxix 845 845 845 845 846 846 846 846 846 846 846 846 846 846 846 847 847 847 847 847 847 847 847 847 847 847 848 848 848 848 848 848 849 849 849 849 849 849 849 849 850 850 Income TtU, Title 1; RfJIIenue Act 0/19!8- p .. .. Continued. possessions of the United States, g1'OII . income of citizens, etc. i ~ 80 per cent derived from Uni1ieQ States ~OD880urces 850 if corporations derive 50 per cent from business therein__________ 850 if citizens derive 50 per cent from active business therein_ _ _ _ _ _ __ 850 all amounts received in United States included in________________ ~__ 850 Vlrghi Islands not included_______ 850 deductiona allowed citizens; domestio corporations_________________ 850 credits'· allowed citizens; domestic . corporations__ _ _ _ _ ___________ . 850 allowance of deductions and credits by filing returna of total income_ 850 no credit for tax of foreign govern- ments_______________________ 851 corporations not deemed affiliated___ 851 nonresidents of United States taxed only on income from United States sources_ _______________ 851 payment of taxes in Virgin Islands notaffected__________________ 851 China Trade Act corporations_ _ ___ ___ 851 credit allowed for proportion of dividends from residents .of China_______________________ 851 certificate of Commissioner ae to ~ial dividends__ _ __ _ _______ 851 diVIdends additional to all other pa~ents 851 distnbution of, in proportion to stock owned__________________ 852 owne!,!hipof,~tock d~ned_________ 852 definition of China _____________ 852 no allowance for credit against tax of foreign government_ _ _ _ _ _ __ ___ 852 not deemed affiliated with any other dividrg:=\~d_e(ifM~groasb;c""o~e 852 of shareholders_______________ 852 assessment and collection of defi- ciencies__ ____________ _______ _ 852 deficiency is the amount taXed Imposed, exceeds taxpayer's return_ _ ___ _ 852 exceeds previous &BSe8llIIlent, if no return filed__________________ 852 notice of, to tlloXpaler; petition to Board of Tax AppeaIs for re- determination________________ 852 no allSe8llment etc., until notice mailed or petition filed_________ 853 injunctions by court procedure . allowed______________________ 853 exceptions and restrictions~ _ _______ 853 coll~tion Ofl found by'~_______ 853 dl$allowea amount Dot collectible__ 853 payment of, on demand if no petition filed ________________________ ._ 853 waiver of restrictions by taxpayer may be made________________ 853 aggregate amount of, to be de- termined by Board; conditions__ 853 restriction on determining additional, by Commissioner, exceptions___ 853 mathematical error in returns not a notice oL ______________ ~_____ 853 effect of. _______ __ ______ __ ___ __ 854 jurisdiction of Board over other tax- able years; limitation_ _ _ _ __ ___ 854

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text: Talk:Flowers v. Foreman/Opinion of the Court

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


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1881

 cx.xx I_eTas, Tide I, ReIIenue Ace oj 1918- COntinued. deficienoy; date of final decision of ~--- prorating of, under installments____ _ extension of payment, to avoid hard- ship________________________ _ bond required _________________ _ mailing of IlOtice of. _____________ _ !:=':'f:;-ediitely~ if jeopardiJled by delay _______ _ notice to be mailed; IUlllE'lIDlent before decision of Board____ .. _______ _ Board to redetermine, on noiioe___ _ amount aaaesaible after decision of Board______________________ _ not allowed after final decision of Board,etc___. ______________ _ stay of ooUectioll on filing bond; con- dition ______________________ _ further conditions if bond given be- fore filing petition ___________ _ stay of collection of part covered by bond_______________________ _ effect of waiver of stay_________ _ colleotion of unpaid amounts upon final decision of Board.. ___ ___ _ _ credit or refund; colleotion of greater assessment ___________ _ no other abatement claim to be filed ________________________ _ bankruptcy and receiverships________ _ deficiency to be iDlIlle<ba.tely ~ under bankruptcy proceedings__ adjudication by COurt____________ _ cofiectio~ of claims under (.Qurt pro- c~ngs- time extensionallowed __________ _ limitation upon assessment and collec- tion______________ • __ __ __ __ _ _ income tax to be asseued two years after returns filed ____________ _ received during life of decedent, in one year on request cI. executor, etc_________________________ _ application to corporation con- templating dissolution, etc ____ _ corpOration tax. ~ ~ assessed in four years; condition ______ .., _ __ _ _ _ _ assessment at any time in case of fraud. _______ - ______________ _ with consent of CoDUDiasioner and taxpayer______ ~ _____________ _ coUectionby distraiDt, etc.; time linUt;~on ______________ _ 8U8p8nsion of running of statute of limitations __________________ _ interest and additions to the tu_____ _ additional tax on failure to file returns__ exceptions, if failure without willful n~t-- colJection, etc., in lieu of former ad- ditioD8- _____________________ _ interest on deficiencies; assessment and rates _______________________ _ addition to tax as deficiency, in case of negligence; rates_____________ _ in case of fraud; rates__________ _ addition for nonpayment__________ _ interest prescribed, if tax not paid when due ________________________ _ when extension granted, and tax and interest not paid_____________ _ INDEX. 854 854 854 854 854 854 854 855 855 855 855 855 855 855 855 855 856 856 856 856 856 856 856 856 856 856 856 857 857 857 857 857 857 857 857 857 858 858 858 858 858 858 IncomeTu, TitUI, ReHAueAce 011918- COntinued. interest prescribed; for deficiency, etc., not paid on notice and demand_ for nonpayment of prorated install- ~te ______________________ _ interest rate payable by fiduciaries ___ _ to be collected if time for payment extended.___________________ _ on extension of time for deficiency; additional, if not paid________ _ on jeopardy &lSe8llment collections; additional, if not paid in full __ _ on unpai.d clai!ll8 in bankruptcy and ~verships- additions to tax, on removal o'-prop- erty or departure from United . States______________________ _ claims against transferees and 1iduci&- ries ________________________ _ collection of tax on transferred assets same as deficiencies __________ _ liability of transferees; fiduciaries __ _ determination of amount________ _ limitation of assessment on trans- fe~ _______________________ _ transferee of a transferee________ _ one year after court proceedings ___ _ limitation of &SSe8llment. of fiducia- ries_______ -- _______________ _ provisions on death of taxpayer, or terminated corporation _______ _ 8U8pension of statute oflimitations, after notice mailed, etc _______ _ untn final decwonof Board_____ _ address for notice of liability of iidu- Ineanin~u:rUt;;;~============: powers of taxpayer transferred to iidu- ciary on notice to CommiBSioner_ assumed by fiduciary of transferee __ manner of notice_________________ _ overpayments; credits for, if install- ment payment exceeds credited amount_____________________ _ credit or refund if amount already paid________________________ _ for refund or credit of tax then due________________________ _ period of limitations____________ _ limit of amount________________ _ restriction on credit or refund! if de- ficienoy notice maileu tax- __iTarmstroBot (talk)__TarmstroBot (talk) exoe~o~_01:16, 25 September 2010 (UTC)!_~e_c~ excess collected ________________ _ collection after statutorylimitation_ creditor refund on decision of over- payment by Board; limItation __ .efund or credit for exceBB withheld at source. _____________________ _ Inwrporatiom, D. C., Catholic University of America, charter extended____________________ _ name of Saint Vincente Orphan &y- lum chanJled to SaiDt Vincent', Home ana SChooL __________ .. _ Increa38 01 ,he Navy (.ee Naval Establish- ment and Navy). lncurablu, D. C., WlJ8hingtQn Home/or, appropriation for care of indigent pa- tients_____________________ 674,

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1882

 INDEX. cxxxi P .... IftdftrtnitJ/t Loat Mail MaU4Ir, appropriation for, registered, insured, and collect on delivery, domestic_ 191, 1053 for 1088 or hijury of mternational maiL _____________________ 191,1053 deficiency appropriation for, domestic_ 43, 4~5~936, 1622, 1674 for,internationaL____________ ____ _ 43, 45, 50, 936, 1674 for, international, registered_____ 936, 1622 fees charged for_____________________ 469 uniform system of registration and, may be established____________ 469 IndepeMent E.ttJblithment., D. C., supplies for, to be procured and dis- tributed by The General Supply Committee________________ ~__ 1342 Ind8peMent Ojficu Act, 1980, appropriation for President________ 373, 1230 for Vice President______________ 373,1230 for Executive Office ____________ 373,1230 for Executive Mansion and grounds_ 374, for Alien Property Custodian______ _ for American Battle Monuments 1230 574 COmmission _______________ 574,1231 for Arlington Memorial Bridge Com- mission ___________________ 575,1232 for Board of Mediation _________ 575,1232 for Board of Tax Appeals_______ 576,1233 for Efficiency Bureau___________ 576,1233 for Civil Service COmmission ____ 576,1233 foi' Commission of Fine Arts ____ 577, 1234 for Employees' Compensation COJ;ll- mission ___________________ 577,1235 for Federal Board for Vocational Education ________________ 578,1235 for Federal Power Commission_ _ 1)79, 1236 for Federal Radio Commission ___ 579, 1236 for Federal Trade Commission ___ 579, 1236 for General Accounting Office ___ 579; 1237 for Housing COrporation ________ 580,1237 for Interstate Commerce COmmis- sion ______________________ 581, 1238 for National Advisory Committee for Aeronautics ____________ 582,1240 for Public Buildings and Public Parksofthe National CapitaL 583,1241 for Smithsonian Institution _____ 583, 1241 National Museum____________ 584, 1242 for Tariff Commission_ ___ ____ _ _ 584, 1242 for United States Geographic Board_ 585, 1243 for United States Shipping Board___ 585, 1243 for Merchant Fleet COrporation_ 586, 1244 for Veterans' Bureau ___________ 587,1245 salaries in District of Columbia under, liniited to average rates under Classification Act __________ 588,1247 if only one position in a grade ___ 589, 1247 allowanc~ In unusually meritorious cases _____________________ 589, 1247 restriction not applicable to clerical- mechanical service _________ 589, 1247 no reduction hi fixed salaries_ ___ 589, 1247 transfers to another position without reduction _________________ 589, 1247 payments under higher rates per- mitted____________________ 589, 1247 title of Act_____________________ 589, 1247 Index to Stat8 Legislation, appropriation for preparation, etc., of. _ 528 Indu to S~ LegitlGtion-Continued. P .... deficiency appropriation for preparing, etc__________________________ 4 Indian Affairs Bur8au, IrtI.IJrior D8part- m8nt, appropriation for Commissioner, and officepersoJlDel____________ 204,1566 for general expenses____________ 204,1566 for competency commissions________ 204 for supplies, purchase, transporta- tion, etc__________________ 204, 1566 warehouseelimited to three______ 204 recej~ required for services___ 204, 1566 for In Service Inspectors ____ 204,1566 for judps, Indian courts________ 204,1566 for Indian police_______________ 204,1566 for Buppressing liquor, etc., traffic; peyote included____________ 204,1566 for :t::__TarmstroBot (talk) 01:16, 25 September 2010 (UTC),_!_lfo4, 1566 physical improvements.. __ _ _ _ _ 204,1566 supervision and construction em- ployees ___________________ 204,1566 new construction, allotments__ 205, 1567 amount for passenger vehicles. . limit _____________________ 205,1567 for emergency allowance for replac>- ing property destroyed by fire, etc_______________________ 205, 1567 not applicable to new conatruc- tion ______________________ 205,1567 report to COngress ___________ 205,1567 for expenses in probate matters_ 205, 1577 for determmmg heirs of deceased allottees__________________ 2 0~ 1 567 . Osages and Five Civilized Tribes excepted__________________ 205, 1567 for attorneys, etc., in probate mat- tera, FiYe Civilized Tribes and ~paws__________________ 205, 1567 civil service requirements _____ 205,1567 for citizen commission __________ 205,1568 for surveying, allotthlg, etc., lands hi severalty _______________ 206,1568 use in New Mexico and Arizona restricted ________. ___ __ __ _ 206,1568 provisions for repayment from Indian moneys for, repealed____ 206 repeal not applicable to special ActB.________________________ 206 for quieting titles, Pueblo land grants_______________________ 1568 for surveys, allotments. etc., Northem Cheyp,nne Reservation, Mont.; hnmediately available_ _ _ _ _____ 206 for advertising land sales; repay- ment _____________________ 206,1568 for attorney for Pueblo Indians, New Mexico ___________________ 206, 1568 for Choctaw and Chickasaw coal and asphaltlands__________ 206,1568 for final settlement of affairs of Five Civilized Tn"bes _______ 206,1568 for purchase of land, Fort Apache Reservation, Ariz.; immediately available; from tribal funds____ 1568 for lands for homeless Indians in California_________________ 206, 1568 for lands for full blood Choctaw Indians of Mississippi. _ _ _ _ _ 206, 1568 for purchase of land for Archie Eggles- ton__________________________ 206 for addition to Papago Reservation, Ariz_________________________ 207

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1883

 QXxxjj INDEX. lMiG" AfIoira Bureau, IfIt..wr'.IHpGrI- Pace. ~ontinued_ appropriation for land for Temoak In- dian, in Nevada______________ 207 for settling land and water rights Ioeaee to' Indians of certain pueblos in New Mexico________ 1569 payment to designated pueblos___ 1569 for additional land for Jicarilla Res- for cl:~c:t~ TarmstroBot (talk)-~dof 207 Cherokees, North Carolina_ ____ 207 for maintenancel etc., ~OW&8, etc., Oklahoma, nom mbal funds_ __ 207 for lands and developin$water sup- plYr etc., Tesuque Indians_____ 1569 for lanClll and water rights, Navajo Indiana; surface purchaee of land diacretionary_________________ 1569 for traneferring remains, Old Nis- qually cemetery; fund avail- able_______________________207, 1569 for p~yments to Kiowas, etc., ·from oil royalties trust fund__ '___ .: 207, 1569 for induatrial aaaistance, etc___ .: _ 207, 1570 for timber culture, etc__________ 207, 1570 administration of Indian forest lands_____________________ 207, 1570 for experiments on school or agency farme; matrons, farmers, etock- men, etc__________________ 207,1570 for forest fire prevention___________ 1570 liiDitation on pay not applicable to designated employees__________ 1570 for expeDles of timber sales______ 208, 1570 for forest insect controlI Klamath Reservation, Oreg., lrom tribal funds________________________ 1570 for emergency lIUppreaaingforestfires, unexpended balance' reappro- priated; from tribal fundl~ __ 208, 1570 for supervising mining operations on lDdian lands; transfer to Ge0- logical Survey _____________ 208,1570 for encouraging self support, furnish- ing seed, implements, etc ___ 208, 1571 repayment; limitation ________ 208,1571 amount for Pima Indiana, imme- diatelyavailable______________ 1571 purchaee of tribal herda forbid- den _______________________ 208,1571 advances to old, etc., allottee._ 208, 1571 for promoting industry Fort Belknap . Reiervation, MonL___________ 208 for industrial asaistance, Menominee Indians, Wisconsin____________ 208 for purchase of sheep for Southern Ute Indians, COlorado_________ 209 for industrial asaistance, various tribes________________________ 1571 for developing water supply_____ 209, 1572 for increasing grazing ranges, etc_ 209, 1572 for water supply, Papago Indian villages, Arizona and New Mex- ico _______________________ 209, 1572 for water ey'stem, Indiana of Reno Sparks COlonY.z.Reno, Nev_____ 209 Zuni Pueblo, .N. Mex., water supply_______________________ 1572 for developin« water supply, from tribal funda _______________ 209,1572 Mescalero Reservation.z. . .N. Mex_ 209, 1572 Consolidated Ute .lte8ervation, Colo_______________________ 209,1572 Navajo, etc., Reservations, Ariz. and N. Mex _________________ 209,1572 lradiG" Affair, Bureau, Interior Depart- Pap. mem--continued. appropriation for water supply, North- ern Navajo School, etc., Ship- rock, N. Mex_________________ 209 for irrigation and drainage expenses; allotments for designated proj- ~ ______________________ 20~ 1572 for administrative expeDlell of irri- gation projects ____________ 210,1572 supervisinlf engineel'l, etc_____ 210, 1572 for cooperative stream gau~ng __ 210, 1572 unexpended balance for Irrigation reappropriated________________ 1573 systema or projects excluded __ 210,1573 flood damages, etc., expeDlell; liDrlt _____________________ 210, 1573 costa of projects, etc, to be appor- tioned on per acre basis _____ 210, 1573 unpaid charges to be a first lien on property__________________ 210,1573 for irrigating lands of Pima Indians, Gila River Reservation, Aria_ 210, 1573 for San Carlos, etc., irrigll.tion proj- ect, construction ___________ 210, 1573 Florence-Casa Grande project_ 210, 1573 delivery of water to landa in Gila River Reservation _________ 210,1573 contract for elect!ical power de- velopment at Coolidge Dam; authorized___________________ 210 for irrigation pumping plants, etc., Colorado River Reservation, Ariz ______________________ 212, 1573 for Ganado irrigation projeot, Ariz _____________________ 212,1573 for San Xavier irrigation project, Ariz ______________________ 212,1573 for pumping plants, etc., San Carlos Reservation1.JUiz __________ 21~ 1573 transmission nne from Coolidge danL________________________ 1573 water supply for San Carlos In- dians________________________ 1573 for irrigation charges, Yuma Reserva- tion, Calif_________________ 212,1574 for irrigation, Fort Hall Reservation, ldaho____________________ 212,1574 Gibson unit, Fort Hall project____ 212 replacing fire damages__ _________ 1574 for reclamation of Kootenai Indian allotments; repayment_ _ ______ 1574 for R. E. Hansen, reimbursement for crop destruction______________ 1574 for irrigation, Sao and Fox Indians in Iowa________________________ 1574 Fort Belknap Reservation, Mont_____________________ 212, 1574 Flathead Reservation, Mont.; use of unexpended balances; develop- ment of power distributing sys- tem. _ __ ____ _______ _______ 2 1 2, 1574 Fort Peck Reservation, Mont_ 213, 1574 Blackfeet Reservation, Mont__ 213,1575 Crow Reservation, Mont______ 213,1575 Pyramid Lake Reservation, Nev ______________________ 213,1575 Paiute allotments within Newlands reclamation projectl. Nevada_ 213, 1575 for operating, etc., La'IUna and Acoma irrigation system, New Menco ___________________ 213,1575 for Hogback irrigation project, Navajo Reservation, N. M _ 213, 1575 for flood protection, etc., pueblos in New Mexico ______________ 214,1575

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text: Benjamin v. Hillard

title: Benjamin v. Hillard


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1884

 INDEX; ian AJ!Gir. Bureau, I ftUrior Depart,.. Pale. ment-Continued. ~propriatlon for miscellaneous irri«a- tion proiects on Klamath Reeer~ vation,Oregon _______ ~ _ __ ~ 21~ 1575 for Irrigating allotments of Unoom- paIigre, etc., Utes in Utah~_ 214,1575 for ope!,&ting, ete., Toppenish-Bimcoe Irrigation system on Yakima Re8ervation, Wash _________ 21~ 1575 for reimbursing reclamation fund for stored water, Yakima Reserva- tion, Wash______________ .:. 214,1576 for ~apato irrigat~on s~tem, Yak- una ReservatlOn, Wash.; re- payEDent_____________________ 214 Satus irrigation unit _________ 21~ 1576 for reclaiming certain lands, Lummi Reservation l Wash____________ 214 for extending imgation to additional lands of Wind River Reserva- tion, Wyo_________________ 214,1576 unexpended balances of specified appropriations covered iri___ 215, 1576 for support of schools__________ 215, 1576 deaf and dumb or blind or mentally deficient children __________ 215,1576 amount for educating Alabama and Coushatta Indians in Texas ____________________ 215,1576 boarding schools with diminished attendance discontinued ____ 215, 1576 discontinuance of day schools under average ______________ 215, 1576 sums for discontinued schools re- turned to Treasury_________ 215,1576 tuition in public schools; no formal contracts required. _________ 215, 1576 for support of schools, from tribal funds_______________________ 216 amount for construction; limit____ 216 purchase of library books_ _______ 1577 educating youths in stock raising_ 1577 for s~port of schools other than Five Civilized Tribes, from tribal funds________________________ 1577 for Chippewas in Minnesota, addi- tional for pubUo schools_______ 1577 new construction________________ 1577 for education, etc., Five Civilized Tribes____________________ 216,1577 for collecting and transporting pupils_ 216, 1577 obtaining employment; repayment of expenses________________ 216,1577 native pupils from Alaskainc1uded_ 216, 1577 for school buildings; restriction __ 216,1577 new projects designated_______ 216, 1577 additional buildings in Arizona; . maintenance, etc.z by State_ 216, 1578 for support of speCified boarding schools ___________________ 21 ~ 1578 Fort Mojave, Ariz ___________ 217, 1578 Phoenix, Ariz________________ 217, 1578 Truxton Canyon, Ariz ________ 217,1578 Theodore Roosevelt, Fort Apache, Ariz ______________________ 217, 1578 Sherman Institute, Riverside, Calif- 217, 1578 Fort Bidwell, Calif___________ 217,1578 Haskell Institute, Lawrence, Kans_ 217, 1578 Mount Pleasant, Mich________ 217,1578 Pipestone, Minn _____________ 217,1578 Indian AfJair. Bureau, I~ Depart,.. P-.e. ment-ContinU«L appropriation for' support of specified boarding schools, Genoa, Nebr_ 218, . 1578 Carson City, Nev____________ 218,1579 Albuquerque, N. Mu________ 218,1579 Santa Fe.l-N. Mex ___________ 218,1579 Charles H.. Burke, Fort Wingate, N. Mu___________________ 218,1579 Cherokee, N. C ___ __ __ ___ __ __ 218,1579 Bismarck, N. Dak ___________ 218,1579 Fort Totten:.N. Dak _________ 218, 1579 Wahpeton)..N . Dak___________ 218, 1579 Jiai;~iitg-sciio!)~8, 1579 l' uah. Okla.. ___ __ ___ __ 2 18, 1579 Bloomfie d, Okla__ '-_____________ 1579 Euchee, Okla________________ 219, 1579 Eufa~ Okla _______________ ·21~ 1579 Chemawa, Balem, Oreg _______ 219,1580 Flandreau, s. Dak_._~ _______ 219,1580 Pierre, S. Dak_______________ 219, 1580 RapidCity.!..~. Dak_____. ________ 219 HaY1V8rd~¥w~-_-.-.- 219, 1580 Tomah] wm. ________________ 21Q, 1580 for schOOl facilities, NaVajo Indians, . Ariz.________________________ 219 for tuition for Chippewa children in Minnesota puolic schools_ _ _ 219, 1580 for schools for Chippewas of the MisslllBippi in MmneBota.. __ _ 2 19, 1580 for e<j.ucation of .Osage children, Oklahoma, from tribal funds_220, 1580 Saint Louis Mission BollJ"(jing School included. ___ _ .... . .;__ 220,1580 for oommon schools, Five CiviliBed Tribes and Quapaw., Okla __ 220,1580 for support, ete., of schools among . sioux Indians, S. Dak., ete__ 220, 1581 for public schools in Uintah and Du- chesne Counties, Utah; condi- tion_______._______________ 220,1581 for conservation of bealth_______ 220, 1581 repairs, etc., to .buildings and plants_______________________ 220 expenses of officers and employees_ 220, transporting· patients and attend- 1581 ants______________________ 220, 1581 amount for physicians and nurses_ _ 220, 1581 attendance at meetings of medical, etc., associations ___________ 220, 1581 preventing tra.choma, ete _____ 220,1581 allotments for specified hospitals and sanatoria _____________ 220,1582 for support, etc., of hOspitals, Chippe- was in Minnesota, from tribal funds ______,__ __ __ _ __ __ _ __ 221, 1582 for sanatorium building, Leech Lake Reservation, Minn____________ 1582 for hospital, Rice Indian School, Ariz., from tribal funds________ 221 for Keshena Hospital. WiB., addi- tions; from tribalfunds_______ 1582 for general treatment, from tribal trust funds; new construction .l imited ___________________ 221,1582 for Canton, S. Dak., insane asy lum_221, 1582 for genera.1 support and admiuistra- tion; detailed report of Five Civilized Tribes ___________ 221,1583 position of Superintendent of Five 9,:ilized. Tribes placed under CiVil-service rules_____________ 1583

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text: Talk:Benjamin v. Hillard

title: Talk:Benjamin v. Hillard


text:
Benjamin v. Hillard/Opinion of the Court

THIS case was brought up by writ of error from the Circuit Court of the United States for the southern district of New York.

Hillard & Mordecai, the plaintiffs below, of Wilkesbarre, in Pennsylvania, made a contract with Hopkins & Leach, of Elmira, New York, dated September 11, 1847, under seal. Benjamin guarantied the performance of this contract, as follows:

'For value received, I hereby guaranty the performance of the within contract on the part of Hopkins & Leach; and in case of non-performance thereof, to refund to Messrs. Hillard & Mordecai all sums of money they may pay or advance thereon, with interest from the time the same is paid.'

The action was brought upon this guaranty, which resulted in a verdict for the plaintiffs, damages six thousand dollars, and $1,869.15 costs. A motion was made for a nonsuit, which was overruled. The particulars of the case are stated in the opinion of the court.

It was submitted on printed arguments by Mr. Tracy and Mr. Noyes for the plaintiff in error, and by Mr. Goddard for the defendants.

The counsel for the plaintiff in error made the following points:I. The court erred in the construction of the defendant's agreement.

1. It was the contract of a surety, which is to be taken strictissimi juris, and is not to be enlarged by a liberal or loose interpretation.

Leggett v. Humphreys, 21 Howard, 66, 76.

Miller v. Stewart, 9 Wheaton, 681, 703.

Wright v. Johnson, 8 Wendell, 512, 516.

2. The motive and design of the writing was to protect the plaintiffs against the loss of the money they were to advance. It therefore guarantied a performance of the contract by a delivery of the articles, and that if they were not delivered the money should be refunded with interest.

3. That it referred to such a performance, or such a nonperformance, is evident from the stipulation that provides for a repayment of the entire advances with interest, and not for any partial damages. This suretyship is for such a performance only, and is answerable only for a failure in that respect. Under this agreement, if the articles should be made and accepted, and the business settled by the principals, the surety has no liability.

4. There is nothing in the surety's agreement which binds him to answer for the breach of any warranty which the principals have contracted to make. The sealed agreement binds the manufacturers to warrant the engine capable of driving six run of stones, but the guaranty has no connection with such a prospective warranty. The surety's obligation must be and is definite; he is liable at once, or never; the articles are delivered, or they are not; if delivered, he is clear; if not delivered, he is at once liable to refund the money advanced, but nothing else.

5. The essential idea of having the money refunded in gross, apparent on the face of the paper, shows that it was a total non-performance alone which should charge the surety, and the mention of that sum necessarily excludes all other liability.

6. The surety cannot be supposed to have intended to assume an indefinite future liability for ultimate defects in articles accepted and used by the plaintiffs, and as to which the defendant was wholly ignorant.

7. The interpretation adopted by the charge renders three-fourths of the writing senseless and inoperative. The writing is in five lines, and all below the word 'Leach,' in the second line, is deprived of all force and effect. This passage is manifestly intended to limit and define the extent of the obligation of the surety, and it performs that office, and no other.

II. The undertaking of the defendant was astisfied by the performance of Hopkins & Leach's contract.

1. The delivery and acceptance of the engine, &c., the giving Hopkins & Leach credit therefor, the settlement of the account, and payment of the balance, and the giving of a receipt in full, were acts of the plaintiffs, determining and proving a performance of the contract. The contract for the engine, boiler, and appurtenances, constituted one item at a set price; and the delivery of the whole completed that part of the contract, and the charging, crediting, and allowing of the same as done, and settling for the price, closed that part of the contract.

2. The receipt which went forth from the plaintiffs was justly relied upon by the defendant as a full discharge of the contract; and he acted upon it in relinquishing valuable securities which he held for his indemnity. The plaintiffs are therefore estopped from denying the performance so evidenced by their receipt.

Broom on Common Law, 841, 842, (91 L. L. O. S.)

3. The defendant being a mere surety, and not a principal in the contract, was ignorant of the transaction, and knew not whether the contract was performed or broken. He was informed and assured of its performance by the receipt, and that became his full voucher for treating the performance as established.

4. The making of the last payment was a determination that the contract was 'fully completed;' for it was only to be had 'when the contract is fully completed.'

5. The case shows that the settlement of the plaintiffs with Hopkins & Leach was made December 18th, 1848; before the mill was fully tried, which was not done till December 25th, 1848.

Thus the plaintiffs waived the right to test the work by a full trial, and proceeded to a closing of the contract at once. After that, they could not resort to the surety, on the ground of non-performance.

6. The plaintiffs treated this settlement with Hopkins & Leach as a determination of the suretyship. Thus, on the 27th December, 1848, being nine days after the settlement, they gave notice to Hopkins & Leach of the failure of the engine; but they never gave any notice to the defendant till the last of May, 1849. The idea that the defendant owed them any undischarged obligation was an afterthought, occurring five months subsequently to the discovery of the failure of the engine.

III. The defendant's obligations as surety were discharged by the acts and agreements of the plaintiffs and Hopkins & Leach.

1. The time of performance by Hopkins & Leach was enlarged. The contract required them to deliver the articles at Wilkesbarre, by the first navigation of the ensuing spring, which would be in March, 1848. The new agreement, to which the defendant was not a party, gave them till the third rise of water in October, to complete the delivery. Such new agreement was made upon a good consideration, and was valid and binding. It made a permanent and material change in the contract.

The surety thereupon ceased to be liable. The identity of the contract was gone. He was not subject to be made liable thus for a longer period, with increased risks, and larger amounts of interest in case of being charged to refund advances.

Whether the change was for the benefit of the one party or the other, or both, it was, in either case, a change of the contract, and discharged the surety.

Miller v. Stewart, 9 Wheaton, 681, 703.

Burge on Suretyship, 203, 206.

Pitman on Pr. and Surety, 208.

Theobald on Pr. and Surety, 154.

Parsons Mercantile Law, 67.

Dickerson v. Commissioners, 6 Indiana, 128.

Hunt v. Smith, 17 Wendell, 179, 180.

Walwrath v. Thompson, 6 Hill, 540; 2 Const., 185.

McWilliams v. Mason, 6 Duer, 276.

Bangs v. Strong, 7 Hill, 250.

Samuel v. Howarth, 3 Merivale, 272.

Thus, in Miller v. Stewart, (above cited,) Judge Story says: 'Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of his contract. To the extend and in the manner and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal.'

So in Parsons Mercantile Law, (above cited,) 'If the liability of the principal be materially varied by the act of the party guarantied, without the consent of the guarantor, the guarantor is discharged.'

So in Walwrath v. Thompson, (above cited,) it is laid down that the terms of the guaranty must be strictly complied with, or the guarantor will not be bound. If he propose a credit, that particular credit must be given to the principal.

In 3 Merivale, 272, the Lord Chancellor said that an extension of time to the principal discharged the surety, 'although such giving of time is manifestly for the benefit of the surety.'

So in Brigham v. Wentworth, (above cited,) it is held that an agreement by the plaintiff, for a consideration, changing the obligation of the principal, discharges the surety.

The like rule runs through all the authorities above cited.

After the plaintiffs in this action made the new agreement with Hopkins & Leach, in March, 1848, they could maintain no action against Hopkins & Leach for not completing the delivery by the first water of the spring. The time of performance was effectually enlarged to June and October. For this extension the plaintiffs paid a consideration-the agreement to add $200 worth of extra work-a consideration of benefit to the plaintiffs and of loss to Hopkins & Leach.

The case thus falls perfectly within the rule, that the contract of the principel being changed, the surety is discharged.

The fact that the time of performance originally contracted for had already arrived, and Hopkins & Leach might be deemed in default of performance, makes no difference in the application of the rule. The plaintiffs chose to waive the default and make a new contract. If the plaintiffs had insisted on the default, then Hopkins & Leach would have kept the engine, and the defendant would have been liable only for the advances previously made, being then about $4,000; and he would have been more secure of indemnity, by reason of the engine, so far as built, being still the property of Hopkins & Leach.

2. The plaintiffs did not perform the stipulations of the original contract on their own part.

They did not make the advances at the times set by the contract, nor in money as it required.

The contract provided for the payments as follows:

$2,000 on or about December 1st, 1847.

$2,000 on or about February 1st, 1848.

And all the balance when the contract was fully completed.

The plaintiffs waited till December 14th, and then remitted a draft for $2,000. From that time forward they gave acceptances and notes, at various times; thus giving to the principals larger advances, and of other kinds, and at other times, than stipulated for in the contract.

3. The defendant as surety, therefore, is not bound to respond on the guaranty. It is material to the risk or safety of the surety, that the advances be made as specified in the contract to which he is surety; and a change in that respect, although made by the principals, is no less a breach of the contract, and discharges him. An advance made before the time it should be made, or after it, or in a different kind of medium, is equally a departure from the conditions of the suretyship.

Theobald Pr. and Surety, 154, sec. 183.

1 Starkie N. P. C., 192, Bacon v. Chesney.

2 ib., 426, Simmons v. Keating.

6 Beavan, 110, (13 L. J. N. S., Ch., 260; Jurist., 38; 4 Beavan, 379; 10 L. J. N. S., Ch., 395; 5 Jur., 164,) Bonsor v. Cox.

2 Comstock, 185, Walwrath v. Thompson, (6 Hill, 540 S.C..)

4 Barbour, 487, F. and M. Bank, Mich., v. Evan.

2 Keen, 638, (7 L. J. N. S., Ch., 90; 2 Jur., 62,) Calvert v. London Dock Co.

Burge on Suretyship, 117, 118.

8 Wendell, 512, Wright v. Johnson.

17 ib., 179, Hunt v. Smith.

Fell's Law of Guaranty, 206, et seq., (2d Am. ed.)

The above authorites fully sustain the principle above stated.

Thus in the above case of Bacon v. Chesney, the time of credit was shortened from eighteen months to twelve months, and in Simmons v. Keating it was changed from one credit of six months to two credits of three months, and the surety was held discharged.

In Bonsor v. Cox, the surety was discharged, because the creditor advanced to the principal cash, instead of a three months' draft stipulated in the contract.

Theobald says, (p. 154, sec. 183,) 'If the creditor neglects to perform, or performs defectively, any of the conditions, either express or implied, which are incumbent upon him, or any of the terms which collectively form the consideration, either of the sureties' contract or of the contract to which the surety acceded, the surety is discharged, or, rather, his liability never attaches.'

In Walwrath v. Thompson, (above cited,) there was a guaranty of credit to January 1st, but the credit was, in fact, given to December 25th, and the surety was held discharged, although the principal was not called on to pay till January 1st. Judge Bronson says, (p. 542:) 'The fact that the credit was abridged only a few days is not important; cutting off a week is as fatal as though it had been a month.'

In 4 Barbour, 487, the contract was for a loan of five thousand dollars. The surety was held discharged, because the loan was made for a larger sum than the one specified.

In 17 Wendell, 179, the surety was held not to be liable for two reasons: first, that the credit was given to a larger amount than the one specified in the agreement; and second, that it was given for a longer time. This was a decision by the Supreme Court of the State of New York, when it was composed of Judges Nelson, Bronson, and Cowen.

IV. The court erred in refusing to charge the jury as requested by the defendant's counsel, in relation to the rule of damages.

The engine, boilers, and appurtenances thereof, had a definite price fixed by the contract, viz: $3,150. The parties had set this as the value of such articles, properly made and fully answering to the terms of the contract. In any assessment of damages for a failure to deliver such articles, that price must be taken as the test of value.

Whatever rule of damages might be applied, this element of the price of an engine of the specific dimensions, and sufficient to drive six run of stones, was an essential consideration, and the instruction asked for should have been granted.

Cary v. Gruman, 4 Hill, 265.

The price of the article stipulated by the contract is prima facie the value of such article when it fully conforms to the agreement.

The jury, being left without such instruction, found a verdict against the plaintiff for nearly twice the contract price of the engine, boilers, and appurtenances, although the plaintiffs retained the property, and it had material value.

V. The court erred in admitting the paper called a survey.

This paper was an unsworn statement, made ex parte, and contains allegations of particular facts, and also expressions of opinions of the persons signing it.

It was calculated greatly to affect and mislead a jury, and ought to have been excluded. It was wholly inadmissible as evidence. The effect of admitting such evidence was to enable the plaintiffs out of court to get up an ex parte statement, and then bring it before the jury with the apparent force of regular proof.

The circumstance that the paper had been sent to the defendant made no difference in its admissibility, for it was received in evidence generally, and not for any qualified purpose.

The counsel for the defendant in error made the following points:

The plaintiffs gave evidence to prove that the engine and machinery were not well made; were not put in operation; would not drive six run of stones; that they spent large sums of money to put them in a condition to run, and that they would not then or ever drive six run of stones, and proved the damages sustained; and that when the accounts were balanced, December 18, 1848, the engine had not been tried, or run in connection with the mill.

That notice of the failure of the engine was sent to Hopkins & Leach, December 27, 1848, who again tried to put the engine in operation, and again failed. That notice of such final failure was then sent to defendant, with a copy of a survey upon the engine made by engineers.

I. The first exception in the case was to the admission of this survey.

It was competent evidence to show what notice and information were sent to defendant; and in this light only was it put in evidence.

It being proper evidence for one purpose, and the exception being general to its entire exclusion, it is not well taken.

Cambden v. Doremus, 3 How., 515.

It was, however, admissible for all purposes, as the defendant had already introduced evidence as to its contents, as had the plaintiffs also, without objection.

The objections taken on the execution of the commission were not made at the trial.

II. The next exception is to the refusal to nonsuit. This cannot be done against the will of the plaintiff.

Elmore v. Grymes, 1 Pet. Rep., 469.

De Wolf v. Rabaud, 1 Pet. Rep., 476.

Crane v. Morris's Lessee, 6 Pet. Rep., 593.

The questions raised on the motion for a nonsuit will not therefore be considered, except such of them as are contained in exceptions to the judge's charge to the jury.

III. The remaining exceptions are to the charge.

1. The construction given to the guaranty is correct.

The last clause of the contract with Hopkins & Leach is, that they would give security for the money and for the fulfilment of this contract. And then on the same paper follows the guaranty, by which the defendant guaranties 'the performance of the within contract on the part of Hopkins & Leach.' And also agrees to refund the money paid on it, if not performed.

The exception does not indicate with which part of this charge the defendant was dissatisfied. Whether that part of it which relates to the repayment of the money, if the engine, &c., were not delivered at all, or that part which holds defendant responsible, if they were delivered, but not according to contract.

If either portion is correct, the exception is too general.

But the whole is correct.

The defendant guaranties the performance of the contract.

That is, he undertakes and binds himself that the contract shall be performed. Not merely that an engine and machinery shall be delivered of certain dimensions, but that they shall be according to the contract. Any other guaranty would have been of no value, and would not have been what the contract entitled the plaintiffs to.

If the contract was not performed, the defendant was liable to such damages as the plaintiffs had legally sustained-as the court afterwards charged-and no more.

2. The charge of the court on the alleged enlargement of the time for completing the contract was correct.

The amount of it is, that such an acquiescence in delay, on the part of Hopkins & Leach, as was testified to, would not, as matter of law, discharge the defendant. But that a material alteration of the contract by the parties would discharge him.

The evidence as to the alleged enlargement of the time is on page 20-that of Frederick Leach. He says: 'We did not get the whole completed by the first run of water in the spring;' and that he wrote Hillard & Mordecai he could have the engine ready 'by the next rise of water in June.'

He then says that he saw Hillard, and it was agreed he might bring down 'the engine and other work and materials in the June rise of water.' That is, the residue of it-most of it was brought in the spring.

This was no enlargement of the time, as Leach had already written he could not have them ready till 'the next rise of water in June.'

And it seems the articles could only be sent when there was a rise of water.

He also says: 'It was also agreed that I might have till October to deliver some parts of the work.' But what those parts were does not appear. They were not 'the engine and other work and materials' that were to come in June; nor 'a large majority of the machinery and boiler, and pretty much all the engine,' that were taken down in March.

It does not appear that the parts to be sent in October were of any importance in the fulfilment of the contract.

The time for the putting up the engine, &c., was not fixed by the contract. They were to be put up 'when the foundations are finished and ready for the reception of the machinery,' of which Hopkins & Leach were to have ten days' notice. There was no change in this.

An agreement with the principal for delay does not discharge the surety, unless it is one which the principal can enforce; one which is valid in law; and made on sufficient consideration.

McLemore v. Powell, 12 Wheat., 554.

Vilas v. Jones, 10 Paige, 79.

The contract was under seal, and could not be varied by parol, so as to be obligatory on the parties to it.

Davey v. Prendergrass, 5 Barn. and Ald., 187.

Galm v. Niemceuicz, 11 Wend., 312.

3. There was no error in the charge as to the effect of the settlement of the accounts between the plaintiffs and Hopkins & Leach, and the payment of the balance, December 18, 1848. The account which Hopkins & Leach retained, and took to Elmira, is that signed by plaintiffs.

The witness, Leach, testified that he showed this account to the defendant, and required him to give up certain securities.

He also says that his firm of Hopkins & Leach dissolved at that time, and sold out to Leach, Potter, & Covill; and that, to make such sale, they had to settle with Mr. Benjamin, and get up the chattel mortgage; and that they gave Mr. Benjamin the notes of the new firm, in place of those of the old.

He does not state whether the mortgage or the notes were held as security for the guaranty. There was really no evidence that any security held for the guaranty was given up, unless it was the substitution of one security for another.

The witness sought to create an impression that the securities were given up in part, on the faith of the settlement with the plaintiffs, but he does not says so.

The account and settlement, on page 22, was no discharge of Hopkins & Leach on their contract.

The contract was then completed. The engine was delivered and put up, and the other work was delivered, but not all put up, that being no part of the contract of Hopkins & Leach.

The engine had not been tried in connection with the mill. And of course it could not be determined whether it would drive the mill with six or any run of stones, and whether that part of the contract had been performed.

If the defendant's guaranty of the 'performance of the contract' extended to the quality and sufficiency of the work when done, then he had no right to assume, if he did, that his liability thereon ceased when the last payment was made to Hopkins & Leach; for that payment might, and in fact did, become due before the mill was complete, and before the engine could be tried.

There was nothing in the memorandum of settlement to mislead him.

Whether the contract was performed or fulfilled in the sense of the contract, and as guarantied, could only be ascertained at Wilkesbarre. And the defendant was bound to ascertain, before he could act on such assumption, to the prejudice of the plaintiffs.

4. The guaranty was coextensive with the obligations of the contract.

Mr. Justice CAMPBELL delivered the opinion of the court.

In September, 1847, Hillard & Mordecai employed the firm of Hpkins & Leach to make at Elmira, in New York, and deliver to them at Wilkesbarre, Pennsylvania, a steam engine, and apparatues necessary to put the same in complete operation, of the best materials and in the most substantial and workmanlike manner, according to specifications, and warranted to be of sufficient capacity and strength to drive six run of stones, and the gearing and machinery necessary for flouring and gristing purposes. Also, to make and deliver the cast-iron, wrought-iron, steel, and composition work for driving six run of stones, and the machinery attached, of the best materials and workmanship. These they were to erect and put up on a foundation prepared by Hillard & Mordecai, who were to afford the proper aid for that purpose. The machinery was to be completed and delivered at Wilkesbarre upon the first safe and navigable rise in the water of the river (Chemung) in the ensuing spring; and Hopkins & Leach were to give a responsible individual for security for the money paid on the contract; and for its fulfilment, Hillard & Mordecai agreed to pay two thousand dollars the first of December, 1847; two thousand dollars the first of February, 1848; and the remainder upon the completion of the work, for which payments they were to be allowed interest. Before the first payment, the defendant subscribed an agreement, endorsed on the contract, as follows: 'For value received, I hereby guaranty the performance of the within contract on the part of Hopkins & Leach; and in case of non-performance thereof, to refund to Messrs. Hillard & Mordecai and sums of money they may pay or advance thereon, with interest from the time the same is paid.' This suit was brought on this guaranty by Hillard & Mordecai for the insufficiency of the work done by Hopkins & Leach. On the trial, they adduced testimony to show that the engine and apparatus set up by Hopkins & Leach were not of the best material, nor of substantial and workmanlike construction, and had not strength to drive six run of stones, and in improving them they had sustained expense and loss; that from the middle of December, 1847, till December, 1858, the time when the work was finished, they had advanced fifty-five hundred dollars, and that only a trifling balance existed at that date, which was paid before the work had been tested by use; that afterwards, and in that month, defects were discovered, of which Hopkins & Leach had notice. In consequence of which, they made efforts to improve their work; but in June, 1849, the plaintiffs procured an examination to be made by three machinists and engineers, whose report upon the imperfection of the machinery was communicated to Hopkins & Leach and to the defendant, and who were required to amend their work. This notice and report were read to the jury, the defendant excepting to their competency. The defendant, after the case of the plaintiff was submitted to the jury, inisisted to the court that his contract was merely a guaranty, either of the performance of the agreement by Hopkins & Leach by the delivery of the machinery, or the refunding of the moneys that might be paid before that event; and that the advances of the plaintiffs, being in drafts or notes, and not within the time limited by the contract, the defendant was not liable at all, or if liable, only to the extent of the payment of $4,000, until they had fully performed their contract; and the plaintiffs having fully paid off Hopkins & Leach, and receipts being given, the defendant had a right to consider his guaranty as at an end.

The court overruled a motion to nonsuit the plaintiff, and instructed the jury that the defendant was responsible on his contract, not only for the non-payment of the money advanced to Hopkins & Leach in case they failed to make and deliver the engine and machinery, but also for the full and faithful performance of all of the agreement of Hopkins & Leach. The general rule is, to attribute to the obligation of a surety the same extent as that of the principal. Unless from the terms of the contract an intention appears to reduce his liability within more narrow bounds, a restriction will not be imposed by construction contrary to the nature of the engagement. If the terms of his engagement are general and unrestricted, and embrace the entire subject, (omnem causam,) his liability will be measured by that of the principal, and embrace the same accessories and consequences, (connexorum et dependentium.) It will be presumed that he had in view the guaranty of the obligations his principal had assumed. Poth. on Ob., 404; 3 M. and S., 502; Boyd v. Moyle, 2 C. B., 644.

In the case before us, the contract of the surety is not in the alternative, but consists of two terms: one, that the principals shall perform their engagement, not merely by the delivery of some machinery, but of such machinery as the contract includes; the other, that if there be a non-performance, whether excusable or not, the money advanced on the contract shall be secured to the plaintiffs to the extent for which their principals are liable.

The defendant, to sustain his defence that the plaintiffs had varied their agreement with Hopkins & Leach, adduced testimony to the effect that the letter had informed them of their inability to complete the work 'by the first safe and navigable rise in the river,' and that they assented to the delay proposed by them till another rise; that a portion of the work was sent in April, and a portion in June, and a portion in October, and that the plaintiffs were not ready to receive it until October, and it was not erected until December, 1848, at which time a settlement took place, and the plaintiffs paid the small balance then due.

The Circuit Court instructed the jury that the waiver by the plaintiffs of the punctual delivery of the engine and machinery did not constitute such a change in the contract as to discharge the guarantor. That a mutual alteration of the contract by the principal parties would operate to discharge the defendant as a guarantor; but an acquiescence on the part of the plaintiffs in a longer time than was specified in the contract for fulfilment, especially as the time of fulfilment was somewhat indefinite, would not, as matter of law, operate to discharge the defendant; and the court declined to charge the jury 'that if they believed that the performance of the contract was essentially altered or varied, or the time of the delivery of the machinery at Wilkesbarre extended upon good consideration, without the knowledge or consent of the defendant, the plaintiffs were not entitled to recover.'

The agreement of Hopkins & Leach comprised the manufacture of complicated machinery of distinct parts and different degrees of importance, and these were to be transported to a distance, there to be set up in connection with other works about which other persons were employed. That such a contract should not be fulfilled to the letter by either party is not a matter of surprise. The covenants are independent; and there is nothing that indicates that a failure on either part to perform one of these covenants would authorize its dissolution, or that the breach could not be compensated in damages.

The evidence does not allow us to conclude that there was any intention to change the object or the means essential to attain the object of the original agreement. In its execution, there were departures from its stipulations; but these seem to have been made on grounds of mutual convenience, and did not increase the risk to the surety. He was fully indemnified by his principals until after the settlement between the plaintiffs and Hopkins & Leach.

It is clear that the mere prolongation of the term of payment of the principal debtor, or of the time for the performance of his duty, will not discharge a surety or guarantor. There must be another contract substituted for the original contract, or some alteration in a point so material as in effect to make a new contract, without the surety's consent to produce that result. But when the essential features of the contract and its objects are preserved, and the parties, without objection from the surety, and without any legal constraint on themselves, mutually accommodate each other, so as better to arrive at their end, we can find no ground for the surety to complain. The Circuit Court presented the question fairly to the jury, and the exceptions to the charge cannot be supported. Trop. de Caution, 575; Beaubien v. Stoney, Spear So. Ca. Ch. R., 508; 11 Wend., 312.

The defendant adduced testimony to show that the plaintiffs accepted the engine and machinery; that an account was stated between the plaintiffs and Hopkins & Leach of the work done and money paid, and an acknowledgment of its settlement entered upon it, and signed by the parties; that Hopkins & Leach exhibited this account to the defendant, and demanded a return of the securities they had deposited with him for his indemnity, and that they were yielded on the credit given to that acknowledgment. He requested the court to instruct the jury, that if they believed that the defendant, relying upon the receipt given by the plaintiffs, settled with Hopkins & Leach, and surrendered to them securities he held to indemnity him against the liability he assumed by his guaranty, and such surrender and discharge were made after the settlement between Hopkins & Leach and the plaintiffs, and upon the faith of it, the plaintiffs are bound by such settlement and receipt, so far as the same relates to the defendant, they having put it in the power of Hopkins & Leach to procure the surrender of such securities for the defendant. This prayer finds its answer in the agreement of Hopkins & Leach, and the guaranty of the defendant.

The material of which the machinery was to be composed, and the workmanship and capacity of the manufacture, were warranted. The defects in the machinery were latent, and could only be ascertained by its use. The settlement between the parties did not embrace the subject to which the warranty applied, nor contain any release or extinguishment of the covenants concerning it. The cause of the present suit is not the same as that included in the stated account, or acknowledgment entered upon it.

The present suit originates in the contract between Hopkins & Leach and the plaintiffs. The former could not plead that settlement in bar of a similar suit against them; and, consequently, their guarantor cannot. They have misconceived the import of that settlement without the agency of the plaintiffs, and are not entitled to charge them with the consequent loss.

The Circuit Court instructed the jury, that if they found the engine, boilers, and apparatus for steam power, were sufficient to drive six run of stones suitable for grinding, the damages to be found should be such as would enable the plaintiffs to supply the deficiency, and that they were not required to assume the contract price as the full value of such machinery.

The principle thus laid down coincides with that in Alder v. Keightly, 15 M. and W., 117. 'No doubt,' say the court in that case, 'all questions of damages are, strictly speaking, for the jury; and, however clear and plain may be the rule of law on which the damages are to be found, the act of finding them is for them. But there are certain established rules, according to which they ought to find; and here is a clear rule: that the amount that would have been received, if the contract had been kept, is the measure of damages if the contract is broken.' This rule was reaffirmed in Hadley v. Baxendale, 10 Exch., 341. The exception to the introduction of the notice to the defendant, and the report accompanying it, cannot be sustained. It was proper for the plaintiffs to notify the principals and their surety of the defects in their work, and to call upon them to amend it. The report was not introduced as testimony of the defects, nor can we assume that it was used for that purpose. Upon the whole record our conclusion is, there is no error, and the judgment of the Circuit Court is affirmed.


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1885

 cxxxiv INDEX. Indian A$aif'8 Bureau, l,,""or ikpart- p .. .. ment-Continued. appropriation for Tongue River, Mont., tribal counciL________________ 222 for fulfilling treaties with designated tribes,etc_________________ 222,1583 COlur d'Alenes,eldaho________ 222,1583 Bannoe~1!o Idaho_____________ 222,1583 Crows, Mont________________ 222,1583 Northern Cheyennes and Arapa- hoes, Mont________________ 222,1583 Pawnees, Okla... ______________ 222,1583 Quapaw&, Okla______________ 222,1583 Sioux of different tribes, Nebr., N. Dat., and S. Du__________ 222,1583 Confederated Bands of Utes___ 222, 1583 Spokanes, VVash _____________ 222,1583 Shoahones, VVyo _____________ 22~ 1583 for administration of trust property, Quapaw Agency, Okla______ 222, 1583 for general suPportl etc., under designated.. agencIeS, from tribal funds_________________ ~ __ _ 222,1583 for support,. adminiatrative expeIlll!B.z etc., Chippewas in Minnesota. :a3, 1584 for per capita payments to Choctaw and Chiokasaw Indians, from tribalfunds _______________ 22~ 1584 for Five Civilized Tribes, equaliza- tion of allotmentl, per capita, etc., payments_____________ 223,1584 paymemetodeldgnatedofficlals. 224,1585 for Choctaws and Chickasaws, at- torn~8--- 224, 1585 for legal 9penses prosecutiug claims of Seminole Indians___________ 1585 for support, etc., Indians of Osage Agency, Okla_____________ 224,1586 for oil and'gM expen_, Osage Res- ervatlonJ...~kl.a- ____________224, 1586 for ·visits of VII8g8 Tribal Council, to VV&!Jhin~n, D. C ___ ___ __ _ 224,1586 for diatributing principal funds of Confederated Bands of Utes_ 224, 1586 Southern Utl'8 in Colorado____ 224,1586 for roads and bridges, Red Lake Res- ervation, Okla_____ .; ___ ___ _ 224, 1586 for Cooley-'Whitcriver road, Fort Ap'ache Reservation, Ariz.; from tnbal funds_ _________________ 224 for road on Leech Lake Reservation, Minn., from tribal funds_______ 225 for road to Puye Cliff Ruins, on Santa Clara Reservation, N. Mex_____ 225 for road across Kaibab Reservation, Jurlz_________________________ 225 for GalluI>-Shiprock highway, Navajo Reservation, N. Mex__________ 225 for reimbursement of Harvey Com- panv for road construction to Puye Cliff RuiDS ______ .________ 1586 for road conatruction, etc., on reser- vations excluded from benefits of Federal Highway Act. __ _ __ _ 1587 for constructing two brid~Il' Menom- inee Reservation, Wia., from tribal funds_ _________________ 1587 for erection of monuments, etc_ _ _ 225, 1587 for memorial at Pav;'huska to Indians who died in VVorid War____ 225,1587 for acquiring site and erecting me- morial to commemorate battle with Sioux Indians _________ 225,1587 for monument to Quannah Parker __ 225 Indian AJlairB Bureau, InmiQf' Depart- Pa.re. m61lt-Continued. appropriation for fulfilling treaty with Senecas, N. y _____________ 225,1587 Six Nations),. N . Y ___________ _ 225,1587 Choctaws, vkla______________ 225,1587 for purchase of land for Saint Croix Chippewa Indians, Wis ___ ,. _ 2 2 5,1587 discretionary cash paymenL ...: _ 225,1587 for per capita payment to Menominee Indians, Wis., from trib$l funds_ 226 deficiency appropri4tion for purchase, etc., of supplies_______________ 17, .6,899,993,1617,1618 for 8ehools _______ 47,934,1617,1621,1640 for payinB judgment against Chero- kee Indians, Okla., from tribal funds_______________________ 17 for suppre88ing contagious diseases among livestock______________ 17 for Truckee-Carson. irrigation dis- trict, Nev., Paiute allotted lands &BBe88ffient___________________ 17 for reconnaiasance work relating to irrigation, Middle Rio Grande conservancy district_ __________ 17 for school, Santa Fe, N. Mex _____ 17, 1640 for Sequoyah Orphan Training School, Okla_ _ __ _____________ 17 for JemeJi and Tesuque Pueblos, N. Mex., loss of lands, etc________ 17 for Kiowa, Comanche, and Apache InQians,Okla_________________ 18 for payment to Shawnees, under treaty stipulations __ "'_ __ __ __ __ 18 for Papago Reservation, Ariz., road construction ___ ______ __ __ __ _ _ 18 for constructing Coolidge Dam, etc_ _ 18, . 900,1639 for support of Indians in Arizona ___ 41,47 for Sioux Indians, subsistence, etc__ 41 for Colville Agency, etc., Indians___ 41 for inspectors____________________ 46 for judges, Indian courts__ ________ _ 46 for citizen commission_ _____ __ _____ 46 for timber culture, etc_ ___ _________ 46 for encouraging industry, etc_ _____ 46, 933 for Gila River diversion dam, Ariz_ _ 46 for agency, etc., buildings_________ 47,934 for boardingschools__________ 47,901,934 for schooll..)Vahpeton, N. Dak_ _ ____ 47 for Sioux .I.'Iation,educat.ion________ 47 for relieving diatress, etc___________ 47, 1617,1621, 1673 fer general support, etc_______________ 47, 933, 1610, 1610 1621 for support, etc., Northern Cheyennes and Arapahoes, Mont____ 47,934,1617 for Chippewas of Lake Superior,Wis_ 47 for 6kra~_sTarmstroBot (talk) _TarmstroBot (talk) 01:16, 25 September 2010 (UTC) _01:16, 25 September 2010 (UTC)~ _TarmstroBot (talk)s~ 899 for Indians of Fort Belknap Reserva- tion, Mont., for value of allot- ments, etc_ ____ __ _____ _______ 899 for Fort Wingate Military Res<!rve, N. Mex., transfer of land______ 899 for allotment of lands on Shoshone Reservation, Wyo_____________ 899 for Indian colony,VVinnemucca, Nev., land improvements, etc_ _______ 899 for Okanogan County, Wash., pay- ment of taxes, etc., on allotted Indian lands _____________ .. _ __ 899 for PapagCi Reservation, Ariz., fence_ 899 for Navajo Indians, purchase of land_ 899

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text: Talk:Benjamin v. Hillard/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1886

 INDE..~. cxxxv lftdian ADair. Burdau, Interior J)epan- Pa.Ie. ment-Continued. deficiency ~propriation for Alabama and Coushatta Indiana, TeL._ __ 900 for Klamath Reservation, Oreg., for- est insect eQntroL____________ 900 for Consolidated Ute Agency, Colo., water system, employees' cot- tages, etc_____________________ 900 for COOlidge Dam, power plant_____ 900 for Fort Hall Reservation, Michaud di~ion______________________ 900 for Hogback irrigation ~roject, Nav- ajo Reservation, N. Mex_______ 900 for Middle Rio Grande conservancy projectl.N . Mex.;repayment_ 900,1640 for Hukeu Institute, Lawrence, Kans_______________ 90I, 1610, 1640 for com~nsation for crop damages, etc., Isleta Pueblo, N. Mex_____ 901 for Riverside School, Anadarko, Okla. 901 for school, Rivemde, Calif_________ 901 for Ichool,Bilmarck, N. Dak_______ 901 for conservation of health, etc., among Indians _____________ 901,934 for hospital, etc., Menominee Reser- vation, Wis___________________ 901 for parments, etc., Pottawatomie In- dians of Wis. and Mich., reap- for 8:e"TarmstroBot (talk):vii.tion:-M;;~t~-roii:d 901 construction______________ _____ 902 for bridge construction, Jemez River, Sia Pueblo, N. Mex___________ 902 for Lummi Reservation, Wuh., road construction_______________ ~__ 902 for Hoopa Valley Reservation, Calif., bridge and road_______________ 902 for Zuni Reservation, N •. Mex., road construction___________________ 902 for tabl~t at Medicine Lodge, Kans.• to commemorate holdfug Indian peace council, etc ____________ _ for Puyallup Cemetery, Wuh_____ _ for increuing grazing l'allges, etc___ _ 902 902 934 for diversion dam, Gila River Reser- vation, Ariz__________________ ·9 34 for fulfilling treaties with Navajoes, Ariz_________________________ 934 for Indians in Nevada ____________ :. 934 for Five Civilized Tribes__ 1617, 1671,1673 for Navajo and Hopi Indians, water supply______________________ 1617 for Gila River irrigation project, Ariz ___________ .. __ __ __ __ __ __ _ 1617 for support of Indians in Cali- fornia ___________________ 1617,1621 for support of Indians in New Mexico______________________ 1617 for establishment of telephone line, Flagstaff to Kayen~ Ariz_____ 1638 for Northern Cheyenne lte8erVation, Mont., surveys, etc___________ 1638 for Picuris Pueblo, N. Mex., compen- sationfor property,iltc.,I0888s__ 1638 for timber sales expenses__________ 1638 for mining operations, transfer to Geological Survey____________ 1638' for PtiTarmstroBot (talk) A~t01:17, 25 September 2010 (UTC)~_~_a01:17, 25 September 2010 (UTC) 1639 for Western Shoshone Reservation, water supply _________________ 1639 for drainage assessments___________ 1639 for Flathead irrigation project, Mont_ 1639 54835°-29-PT 1-119 Indian AJTair. Bureau, IAt«'ior Deport- Pa.Ie. ment-Continued. deficiency appro~rlation for Claremore Hospita1l....0kla., construction_ - _ 1640 for Tacoma, wash., tuberoulosis hos- for cY:!;~'B;;;Ri~er-Bo-B:jjak~, 1640 construction ____________ _____ 1640 for day 800001, Turtle MOWltain, Reservation, N. Dak., construc- tion, etc______ _______________ 1640 motor bus servi~1 condition _____ 1640 for e~J>CIlIIM, of e~roumeDt of Indiana In Californl& ____ ~. __ ___ __ _ ._ _ 1640 for attorneys in claima of Wichita, etc., Indians ________ - '_ _ _ __ _ __ 1640 for Eutern Band of Cherokees, N. C ., tribal attorney __ _____________ 1641 for payment to Leah Frank of Creek equalization__ ______________ __ 1641 for payment of Creek equalization to deaignated penoD8_________ 1641 for ~::i:i~::01:17, 25 September 2010 (UTC)__TarmstroBot (talk) 1641 for Shoahone, etc., Indians, trust patents______________________ 1641 for allotments of land on Shoshone Reservatioll, Wyo_____________ 1641 for Lake Andea, S. Dak., spillway, etc__________________________ 1641 for ~r capita payment to Menominee Indians, Wis. from tribal funda_ 1642 for Kiowa, etc., liO!pital, Okla__ .. __ 1642 for payments to Kiowa, etc., In- dians, from oil royalties trust fund________________________ 1642 for Clallam Indians, Wuh_____ 1671, 1673 for suppressing liquor traffic amon, Indiana _________________ 16 1,1673 for Blackfeet Reservation, Mont. 1671,1673 for salaries, 192\}J.under--- 1681 Acoma Pueblo, N. Mex.; landa MSeII'Ved for__________________________ 717 AlabaIDAB and CoushaUas, Tens; lands purehued for, subject to mineral and timber reserva- tions_____ ___________________ 1186 Iillottees, dying without making a will; disposition 01 trust allotments of_ 161 Arapahoes and Cheyennes, Wyo.; time extended for filing suits by _____ 380 Bismarck, N. Dalt., School; purchase of adjoining lands for; price limit_________________________ 366 boarding schools; limit of cost of pupils in,re~ed-- 1534 Cheyenne River and Standing Rock Re..::rvations, N. Dak. and S. Dak.; time extended for paying installments due on ceded lands of_______ ~__________________ 400 Chippewa Indiana of Minnesota; ex- penses allowed attorneys in claims brought in Court of Claims _________________ .. ___ _ 424 Court of Claims if judgment forJ. to determine if trust funds of 1t.ed Lake Band, be used___________ 601 per capita payment from principal fund to enrolled members______ 314 village site permanently reserved for, on Chippewa Reservation_ _____ 684 Choctaws and Chickasaws, Okla.; ex- !-ension of .coal and asphalt min- mg leases lIl__________________ 737

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1887

 cxxxvi INDEX. Indian Affair. Bureau, Inlmor Depart- Paee. ment-Continued. Confederated Bands of Utes; value of lands taken for Montezuma For- est placed to credit of__________ 711 Coos Bay, etc., Indians, Oreg.; claims for lands taken to 00 brought in Court of Claims_ _____________ 1256 Creek Nation; allowance for expenses of attorneys in claims oL ____ ~ __ _ 944 Cr'Jw Indians) Mont.; allotments to living cnildren on Reservation__ 483 allowanee for council meetings, ete., from tribal funds_____________ 1496 field work appropriations for, avail- able for hire of work animals, ve- hicle;;, etc_________________ 243, 1606 Five Civilized Tribes; period of restric- tion on alienation, etc., of allot- ments to members of, further extended,etc_________________ 495 restricted allotments to, in excess of 160 acres, subject to State t&Xfo- tion after April 26, 1931-_ __ ___ 733 time for filing suits in Court of Claims by, extended__________ 1229 Fort Apache Reservation, Ariz.; pur- chase of lands for Indians of____ _ 962 Fort Bidwell School, Calif.; hospital buildin/J authorized for_________ 375 school buildmg authorized for_______ 375 Fort Hall Reservation, Idaho; surve'ys, etc. as to feasibility of irrigatmg lands in Michaud division of, ete__________________________ 377 Fort Peck Reservation, Mont.; sale of reserved lands on_ ____________ 774 Hoopa Valley Reservation, Calif.; half of cost of bridge and road on, authoriZed___________________ 589 Indian agencies; limitation on salaries at.re~ed-- 1307 Indian lands; State agents, etc., per- mitted to enter upon, for in- vestigating health conditions, school attendance, etc_________ 1185 Indian Ranch; lands in Inyo County Calif., set aside for.___________ 162 Iowas; time extended for filing claims of, in Court of Claims_________ 1073 Kaibab Reservation! Ariz.;. amount for road across, unmeatately Avail- able_________________________ 401 Kanosh Band, Utah; area reserved for use of_______________________ 1161 Kansas or Kaw Indians; suit by, au- thorized in Court of Claims____ 1258 Kiowa t.fIdbr' h!:J~t'\Ud~ Indian ~hooL_______________ 401 Klamath Reservation, Oreg.; use of tribal funds for General Council, etc., of Indians residing on_ ____ 1439 K008harem Band; lands set aside for, at Kooaharem i Calif___________ 162 Kootenai Indian a lotments, Idaho; drainage of lands_ ___________ _ 938 Loyal Shawnee Indians; payment of award for war 1088e8__________ 1550 Lummi Reservaticn, Wash.;compIeting road acrOBB, authori~ _ _______ 366 Nez Perce Indians, Idaho; claims against United States to be brought in Court of Claims____ 1249 Indian Affair. Bureau, I ntenor Depart- Pairs. ment-Continued. Nez Perce Reservation, Idaho; ease- ment to laIlCU: in, granted Idaho, for fish and game propagation__ 1022 Paiutes and Shoshones; lands at Sum- mit Lake, Nev.i set aside for___ 160 Papago ~rvationt Ariz.; fence along eastern bounctary, authorized___ 617 Pine Ridge Sioux; per capita payment to___________________________ 747 Pueblo Indians, N. Mex;.j agreement with Middle Rio urande Con- servancy District, for conserva- tionfimgation, etc., lands oL___ 312 Puyallup ndians, Wash.; trust fund set aside fc,r cemetery of, at Tacoma, Wash________________ 378 Rosebud Agency Indians; balance due for cattle pUfilhased, to be can- celed_ __ ____________ ___ ______ 380 per capita pavment to._____ _______ 497 San ndefonso f>ueblo, N. Mex.; tract reserved for use of, in Santa Fe County_______. __ __ _ __ __ _ __ __ 1161 school teachers and physicians allowed educational leaves of absence in addition to regular leaves______ 493 Shoshone Reservation, Wyo.; allot- ments to unallotted living chil- dren_________________________ 617 Shoshones and Arapahoes, Wyo. · per capita payment from trust lunds to___________________________ 467 Shoshones, western bands; claims of, submitted to Court of Claims_ _ 1407 Sioux and Pawnee Indiansj monument at site of battle between, in Hitchccck, Nebr______________ 939 Sioux Indians; allowance of benefits to, Hitchcontinued__ ________ ____ _ 684 investigation of claims of individual, against tribalfunds or the United States_______________________ 484 time extended for relinquishing railroad grant landsto Indiansin Arizona, etc__________________________ 299 Tula River Reservation, Calif.; bound- aries changed___ _______ _____ __ 600 Umatilla Reservation, Oreg.; lands for tribal grazing grounds_ ________ 1008 Walker River Reservation, Nev.; land set aside for__________________ 160 Western Navajo Reservl'.tion, Ariz., telephone line to Kayenta Tu- berculosis Sanatorium, etc_ __ __ 1080 Winnebago Tribe; claims of i to be ad- judicated by Court 0 Claims___ 1027 Wisconsin Pottawatomiesi payment of unexpended balances of treaty funds to________ ___ __ __ _______ 159 Yankton Sioux, S. Dak.; lands reserved for Agency, etc., revested in the Tribe._ ____ ____ ____ ____ ____ __ 1167 Zuni Reservation, N. Mex.; construc- tion of road within____________ 501 Indian Affairs, CommiBaiomr 0/, appropriation for, and OffiCd person- neL_- ______________ .... 204, 1566 IndianA~, appropriation for purchase, construe- • truction, repair, etc., of build- ingsat__ .. _________________ 204,1566 water supply Papago Reservation_ 204

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1888

 INDEX. cxxxvii Indian Agenciea--Continucd. appropriationfor repairing fire damages, etc., to buildings _____________ _ for experiments on schools or, farms_ deficiency appropriation for conlltruct- Pa&e. 205 205, 1570 ing, etc., buildings_____________ 47 limitation of B8.laries at, repealed______ 1307 Indian Allottee8, appropriation for hearings, etc., to determine heirs oL _________ 205,1567 not ap'plicable to Osages and Fivc CiVlhzed Tribes ____________ 205,1567 Indian Campaign Medal, gratuitous issue of, to persons entitled_ SOO Indian CommusWner8, Roard of, appropriation for expenses oL _____ 205,1568 Indian Courts, appropriation for judges__________ 204,1566 deficiency appropriation for judges____ 46 Indian Cove, Idaho, bridge authorized acroBB Snake River, near_________________________ III Indian Creek, Ky., bridge authorized acroBS Cumberland River, at mouth of __________ __ 616 time extended for bridging Cumberland River, at mouth pf ___________ 1525 Indian Department (see Indian Affairs Bureau, Interior Department). Indian Depredation Claims, appropnation for defending suits in_ 77, 1108 Indian Farmers and Stockmen, appropriation for ________________ 207, 1570 Indian Irrigation Projects, damages to owners of landsl etc., caused by, may be paia from funds of.____ ______ ___ _____ ___ 1252 Indian Lands, appropriation for advertising expenses, sales of. __________________ 206, 1568 deficiency appropriation for supervising mining operations on leased_ ___ 1638 State agents, etc., may enter upon, to investigate health conditions, enforcing compulsory school at- tendance, etc., under State laws, etc__________________________ 1185 Indian Matrons, appropriation for ________________ 208,1570 Indian OIUoU Ilo8pital, Ariz., appropriation for support, etc., of. _ 2 20,1581 Indian Police, appropriation for pay, eto _________ 204,1566 Indian Pupils, appropriation for support, etc., of, at schools ____________________ 215,1576 discontinuance of schools with minimum attendance_______ 215,1576 instruction in stock raising_______ 1576 tuition in public, etc., schools __ 215, 1576 for transporting, etc____________ 216, 1577 obtaimng employment; refund_ 216,1577 native pupils from Alaska _____ 216,1577 Indian Ranch, Calif., Indians of, lands in Inyo County set aside for_____ 162 Indian Re8ervation8, appropriation for expen8C8, opening, to entry; reimbursable ________ 203,1566 for salaries, supervising road, etc., construction on_ __________ __ _ 204 for timber preservation, etc_ _ ___ 207, 1570 for suppressing forest fires _______ 207,1570 1ndia:t Re8ervatiom-Continued. Pare. approPi~_~ TarmstroBot (talk) 01:17, 25 September 2010 (UTC)TarmstroBot (talk) 01:17, 25 September 2010 (UTC)g_01:17, 25 September 2010 (UTC) ~uro9, 1572 for irngation and drainage expenses on specified ________________ 210,1572 for constructing, etc., roads in; local cooperation___ ___ _ __ ___ _______ 1587 authorizatlOn of appropriations for con- structing, etc., roads in, not eligi- ble to aid under Federal High- way Act_____________________ 751 employment of Indian labor________ 751 Nez Perce, Idaho; easement to lal'.$ iu, granted to the State for prope.- g!l.tion of fish and game______ __ 1022 Shoshone, Wyo.; time extended for completing mining entries on ceded lands ot._______________ 371 Walker River, Nev.: lands set. aside for_ 160 Indian Schoola, appropriation fOl' support, etc_____ 215,1576 provision for the deaf and dumb or blind or mentally deficient_ 215, 1576 amount for Alabama and Cou- shatta Indians in Texas_____ 215, 1576 discontinuance of boarding schools with less than specified pupils; transfer of pupils __________ 215,1576 discontinuance of day schools be- low average attendance; return of moneys appropriated ______ 215, 1576 sums for discontinued schools covered in ________________ 215,1576 education in public schools; formal contracts not required ______ 215,1576 purchase of library books________ 1577 educating youths in stock raising_ 1577 for support, etc., of, from tribal funds ____________________ 216,1577 for Red Lake, Minl!'l construction__ 216 for Chippewas in Minnesota, addi- tional for public schools; new construction___ ___________ ___ _ 1577 for additionllJ. facilities in public schools of Minnesota_ _________ 216 new construction restricted_ _ __ _ _ 216 for tribal schools of Five Civilized Tribes______________________ 216 allotments from Choctaws and Seminoles_ _ _____ ________ ____ 216 for Wheelock Academy from Choc- taw funds ________________ 216,1577 for Jones Male Academy__________ 1571 for transporting, etc., pupils; re- funding transportation, etc__ 216, 1571 Alaska pupils________________ 216,1577 for constructing, etc., buildings; ncw construction restricted__ ____ 216, 1577 designated projects authorized_ 216, 1577 for additional public school build- ings· in Arizona; maintenance byState_____________________ 1577 for designated boarding schools__ 216, 1577 deficiency appropriation for support_ _ _ 46, 934, 1617, 1621 for buildings, etc________________ 47,934 for boarding Bchools ________ 901,934,1617 for subsistence___________________ 1640 limit ou per capita cost of pupils in boarding, repealed____________ 1534 teachers and physicians allowed educa- tionalleaves of absence in addi- tion to their regular leaves_____ 493

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text:
Ogden v. Parsons

THIS was an appeal from the Circuit Court of the United States for the southern district of New York.

Parsons and the other appellees were the owners of the ship Hemisphere, and a charter-party was executed between their agents and Ogden, the terms of which, together with the other facts of the case, are summarily stated in the opinion of the court.

The libel was filed in the District Court, praying for a writ with a clause of foreign attachment. The writ was accordingly issued against Ogden, commanding the marshal to take his person; if not found, then to take his goods and chattels; if none found, then to attach his credits in the hands of garnishees.

Ogden appeared, and the case proceeded through the District and Circuit Courts in the manner stated in the opinion of the court. From the decree of the Circuit Court, Ogden appealed.

It was submitted on printed arguments by Mr. Owen and Mr. Vose for the appellant, and by Mr. Parsons and Mr. Donohue for the appellees.

The arguments upon both sides entered into the merits independently of the evidence of their witnesses, whose testimony the court considered to be conclusive upon the point of what ought to be considered a full cargo. It is not thought necessary, therefore, to report those arguments.

Mr. Justice GRIER delivered the opinion of the court.

title: Ogden v. Parsons


text: Talk:Ogden v. Parsons

title: Talk:Ogden v. Parsons


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1889

 cxxxviii INDEX. Indian Supplies, Page. approp~lation for purchase, transport- Ing, etc___________________ 204, 1566 warehouses limited to three _ _ _ _ _ _ 204 !imitation on payments, etc ___ 204, 1566 defiCIency appropriation for purchase . a!1d transportation __ 17,899,933, 1638 Indtan Tnbell, deficiency appropriation for report by General Accounting Office on funds oL _ ________________ _ 887 Indian Trullt Funds, - - to bear simple interest at 4 per cenL__ 1164 amount Of, not required for payments to be covered into the Treasury ~ 1164 Id ·restored, for making payments - 1164 n tana, may acquire, after completion, bridge aeross Ohio River, at Cannelton_ 1432 at Madison, Ind________________ 133 between Owensboro; Ky., avd Rock- Wab:rRTarmstroBot (talk);,-at- M~G;eg"o~ -F~n:y 1223 111__________________________ 480 may bridge Miami River, between Lawrenceburg and Columbia Park_____________ 394 .. Ohio River, at Rockpo)'t ........ ~======== 472 . Wabash RIVer, at Vincennes, Ind___ _ 740 time e;;.:tended for bridging Wabash River, at Mount Carmel Ill. blllin ' d " I Y OlS an - 384,1094 ndiana Harbor Ship Canal acceptance from East Chicago Com- . pany, land adjacent to________ 1501 I ndtana Judicial Districtll, northern ,and southern districts cre- 'ated_______________________ 437 senior tudge assigned to southern di; rict_______________________ 438 junior l~dge assigned to northern dis: nct_______________________ 438 present district attorney and marshal assigned to southern district 439 district attorney and mershal for north: ern district to be appointed_ ___ 439 Act for appointment of additional judge, ~ed 439 Indiana Northern Judicial Digtriet - counties constituting Fort Wayne di- vidon_______________________ 438 South Bend division_______________ 438 Hammond division________________ 438 terms of court, at Hammond_________ 438 Fort Wayne_____ ___ ___________ ___ 438 South Bend_ _ ____________________ 438 allowance for holidays_ ____________ 438 grand jury may investigate! etc., crimes committed in anotner di- vieion_______________________ 438 j~i~r district judge to be judge for___ 439 dIBtncta a;,:l f:r_TarmstroBot (talk) 01:17, 25 September 2010 (UTC)_~_ 439 offices ofclerks, etc_ _ __________ __ ___ 439 Indiana Southern Judicial DiBtrict, counties ~onstituting Indianapolis dl- vislon_______________________ 438 Terre Haute division______________ 438 Evansville division_ _______________ 438 New Albany division______________ 438 terms of court, at Evansville_________ 438 Indianapolis_____________________ ~ 438 New Albany_____________________ 438 I r.diana Southern Judicial DiBtrict-Con. terms of court, at Terre Hsute______ _ allowance for holidays _____________ _ Page. 438 438 grand jury may investigate etc. c~i committed in a'nothe; dlvlslon__________ 438 senior district judge to be- j~lige for --- 438 present district attorney and marshal t;; m beassignedto o ces of clerk, etc _________________ _ IndianapoliB, Ind., 439 439 appropr1ation for Confederate /leotion, Greenlawn Cemetery _______ 355,1375 terms of court at_ ______ ____ ____ ___ 438 Confederate monument, etc., to be re- moved from Greenlawn Ceme- tery to Garfield Park _________ _ Indiam (8ee al80 Indian Affairs Bureau Interior Department), , appropriation for suppressing liquor traffic, etc., among; peyote in- 533 f eluded___________, - - -- - - - - 204, 1566 or survey, etc., for allotments in severalty, etc., lands oL ____ 205,1568 restriction on use in Arizona and New Mexico ______________ 206,1568 repeal of provision for reimburse- ment from Indian funds_______ 206 repeal not applicable to special Acts____ ________ ________ _____ 206 for expenses of timber sales; repay- ment_____________________ 207, 1570 for suppressing forest fires ______ 207,1570 for encouraging industry and self- support among; repayment- 208, 1570 restriction on expenditure to any one tribe _________________ 208, ]570 advances permitted to old a11ottees, etc_______________________ 208, 1570 for promoting agricultural activities of___________________________ 1570 for conservation of health among_ 220, 1581 for j)ylum for insane, Canton, S. ak _____________________ 221,1582 deficiency appropriation for reimburs- ing, for destroyed infected live- stock ______________________ 17,1638 for encouraging industry, etc______ 46,934 for relieving distress, etc___________ 47, 934, 1617. 1621, 1673 for general support, etc_______ ____ _ 47. 1610,1617,1621 for conservation of health, etc., among______________________ 901 for suppreSllingliquor traffic among_ 1671, 1672 citizenship conferred upon Eastern Band of Cherokee, in North Carolina, confirmed 1094 disposition of trust all"ot~e~-t8- - ~f allottees dying without making a will, etc_ ______________ 161 relinquishment of lands in raiiro~d grants to, in Arizona. etc, ex- tended______________ ~ __ _ ~____ 299 Indians, American, appropriation for ethnologlcal re- • searches amon~______ ~ ___ __ 583, 1241 defiCIency appropriatIOn for ethnolog- ical researches among__________ 889 born in Canada, may P&SS the borders of the United States; limitation_ 401

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text:
Ogden v. Parsons/Opinion of the Court

The libellants let the ship Hemisphere by charter-party to David Ogden on a voyage from Liverpool to New York. The covenants which are the subject of this litigation are briefly as follows: 'Ogden, to furnish a full cargo of general merchandise, and not exceeding 513 passengers, to pay 1,500 for the use of the ship, to have fifteen running lay days, and for every day's detention beyond that to pay one hundred dollars.'

The libel demands $700 as demurrage for seven days, and for a balance yet due on the contract.

The answer denies any liability for demurrage, admits that the whole amount of 1,500 has not been paid, and charges libellants with breaches of their charter-party, and damages in consequence thereof exceeding the balance claimed by them.

1st. 'Because that they carelessly, wrongfully, and contrary to usage, stowed portions of the cargo where it ought not to have been stowed,' and thereby deprived respondent 'of the full and lawful use of the ship,' by having room for only 350 passengers instead of 513.

2d. That libellants would not take and receive 'a full cargo of general merchandise.'

The District Court decided against the charge for demurrage, but allowed the respondent no damages for the alleged breaches of the charter-party by libellants.

On appeal by respondent to the Circuit Court, the sum of $1,200 was allowed him by that court for the breach first mentioned with regard to the number of passengers received.

From this decree the respondent has appealed to this court.

As the libellants have not appealed from the decree of either the District or Circuit Court, the only question now to be considered is, whether the respondent has shown himself entitled to more damages than were allowed him by the Circuit Court.

The judge of the Circuit Court being of opinion, from the evidence, that the cargo might and ought to have been stowed so as to admit the full number of passengers, (513,) made a calculation from admitted data of the damage to respondent on that account, without referring the case again to a master, and deducted the sum of $1,200 from the amount of the decree of the District Court. Of this the appellant does not complain, but insists that the owners had refused to receive a 'full cargo of merchandise.'

The registered tonnage of the ship was 1,030 tons; the cargo of general merchandise received was 1,297 tons.

The charter-party covenants for no specific amount to be received. What was 'a full cargo' under all the circumstances, and whether the ship could have been loaded to a greater depth than 18 feet 10 inches with safety to the lives of the passengers, was a question which could be solved only by experienced shipmasters. Where experts are introduced to testify as to opinions on matters peculiar to their art or trade, there is usually some conflict in their testimony. What was a full cargo for this ship to carry with safety was not a fact which could be settled by any rule of law or mathematical computation, and the court must necessarily rely upon the opinions of those who have experience, skill, and judgment, in such matters. At least three competent witnesses of this character testify that the ship was loaded as deep as prudence would permit, under all the circumstances. Both the District and Circuit Court were of the same opinion, and we do not find in the evidence anything to convince us that they have erred.

Let the decree of the Circuit Court be affirmed with costs.

title: Ogden v. Parsons/Opinion of the Court