text: Talk:Legal Tender Cases (79 U.S. 457)/Opinion of the Court

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Bronson's Executor v. Chappell

APPEAL from the Circuit Court for the District of Wisconsin.

Bronson, of New York, being owner as executor of lands in Wisconsin, sold a tract to E. and J. Chappell, residing near Galena, in that State, the sale being negotiated by one W. C. Bostwick, of the last-named place. A portion of the purchase-money was secured by mortgage; and as it became due it was paid by the Chappells to Bostwick, under the assumption by them that Bostwick, who had advertised himself during a term of twelve or fourteen years as the agent of Bronson, was the duly constituted agent of Bronson to receive it. Bostwick having failed, and appropriated the money to his own use, Bronson now filed a bill against the Chappells in the court below to foreclose the mortgage. The defendants set up the payments to Bostwick; and the question involv d was thus a pure question of agency. The defendants relied upon a correspondence between Bronson and Bostwick, and particularly, as sufficient of itself, on a letter from the latter to the former, dated 9th February, 1860, and a reply to it of the 15th. These two letters are quoted and the general character of the others, with the leading facts of the case, stated in different parts of the opinion. The court below dismissed the bill, and Bronson took the appeal.

Mr. J. J. Townsend, for the appellant; Messrs. Cothren and Laken, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Bronson's Executor v. Chappell


text: Talk:Bronson's Executor v. Chappell

title: Talk:Bronson's Executor v. Chappell


text:
Bronson's Executor v. Chappell/Opinion of the Court

But a single question has been argued in this court, and that is one arising upon the facts as developed in the record. This opinion will be confined to that subject.

William C. Bostwick, acting for Frederick Bronson, negotiated the sale of a tract of land in Wisconsin to the defendants. According to his custom in such cases, Bronson forwarded to Bostwick the draft of a contract to be executed by the buyers. At the foot of the draft was a note in these words:

'William C. Bostwick, Esq., of Galena, is authorized to receive and receipt for the first payment on this contract. All subsequent payments to be made to F. Bronson, in the city of New York.'

The defendants expressed to Bostwick a preference to receive a deed and give a mortgage. This was communicated to Bronson, who acceded to the proposition and forwarded to Bostwick a deed and the draft of a bond and mortgage. On the 25th of March, 1865, the defendants paid to Bostwick $1500 of the purchase-money, and executed the bond and mortgage to secure the payment of the balance. According to the condition of the bond it was to be paid to the obligee in the city of New York, in instalments, as follows: $781.20 on the 13th of November, 1865, and the remaining sum of $4562.40 in seven equal annual payments, from the 12th of February, 1865, with interest thereon at the rate of 7 per cent. per annum. The contract was erroneously construed by Bronson as requiring the interest on all the instalments to be paid with each one as it fell due. The other parties seem to have acquiesced in this construction. On the 4th of December, 1865, the defendants paid to Bostwick, as the agent of Bronson, $825.36, in discharge of the amount claimed to be due on the 30th of November, 1865, and took his receipt accordingly. On the 28th of February, 1866, they paid Bostwick $980 to meet the second instalment and interest, as claimed, with exchange, and took his receipt as before. Bostwick failed in December, 1866. These moneys were never paid over to Bronson. He denied the authority of Bostwick to receive them, and demanded payment from the defendants. They refused, and Bronson thereupon filed this bill to foreclose the mortgage. The validity of these payments is the question presented for our determination.

Agents are special, general, or universal. Where written evidence of their appointment is not required, it may be implied from circumstances. These circumstances are the acts of the agent and their recognition, or acquiescence, by the principal. The same considerations fix the category of the agency and the limits of the authority conferred. Where one, without objection, suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous authority exist, in all respects as if the requisite power had been given in the most formal manner. If he has justified the belief of a third party that the person assuming to be his agent was authorized to do what was done, it is no answer for him to say that no authority had been given, or that it did not reach so far, and that the third party had acted upon a mistaken conclusion. He is estopped to take refuge in such a defence. If a loss is to be borne, the author of the error must bear it. If business has been transacted in certain cases it is implied that the like business m y be transacted in others. The inference to be drawn is, that everything fairly within the scope of the powers exercised in the past may be done in the future, until notice of revocation or disclaimer is brought home to those whose interests are concerned. Under such circumstances the presence or absence of authority in point of fact, is immaterial to the rights of third persons whose interests are involved. The seeming and reality are followed by the same consequences. In either case the legal result is the same.

Bronson, as executor, had a large body of lands in Wisconsin for sale. For several years prior to the purchase by the defendants, Bronson had been in the habit of receiving and forwarding propositions to Bostwick. If approved, Bronson executed and forwarded contracts for the property, to be executed by the other parties. In the early part of the year 1860 Bostwick was startled by a memorandum touching payments, on a draft sent out by Bronson, like that in the draft sent to Bostwick for execution by the defendants. On the 9th of February he addressed a letter to Bronson, in which he said:

'My attention was naturally arrested by the note at bottom of the contract of Tormey, and if it is to be interpreted as an intimation that a withdrawal of my agency is contemplated, it would cause me not less surprise than pain, not so much by any means from the pecuniary consideration connected with it, as from the implied dissatisfaction on your part with the manner in which I have transacted your business; and it occasions the more surprise that I have always endeavored to attend with fidelity and promptness to your business and interests, and have never before had any intimation whatsoever from you that you were not entirely satisfied. I am wholly at a loss to conceive wherein I have given dissatisfaction, or failed to do all that was necessary to do, or could be done under the particular circumstances of any case involving your business or interests in my hands.'

On the 15th of the same month Bronson replied as follows:

'The memorandum at the foot of Tormey's contract I have recently put on all of my land contracts to repel the construction lately sought to be put on them, that the first or other payments, if received by the agent, is an implied waiver of the claim for exchange, and of the stipulation in the body of the contract, that the money is to be paid to me in the city of New York. In other words, it is but a repetition of a clause in the contract, as applicable to all except the first payment.'

This correspondence suggests several remarks:

Bostwick speaks of his employment as having been, and then being, an agency for Bronson. He inquires whether it was contemplated by Bronson to revoke it. Bronson does not deny or revoke it. He says the object of the memorandum was to repel the construction that the receipt of 'the first or other payments by the agent' was 'an implied waiver of the claim for exchange,' and which was the same thing in effect-a waiver of the stipulation in the contract that the money was to be paid to him 'in the city of New York.' It recognizes the authority of the agent to receive the subsequent payments as well as the first one, provided exchange were paid upon the former by the debtor.

The language employed by Bronson will admit of no other construction. It applies with full force to the bond of these defendants. They paid exchange as well as the principal and interest of the instalments in question. There is no evidence in the record that the authority thus admitted to exist was ever withdrawn. It must be presumed to have continued until the relations of the parties were terminated by Bostwick's failure and insolvency. Bostwick says in his deposition: 'I advertised myself as the agent of the Bronson lands, which advertising was continued for a period of twelve or fourteen years.' His testimony upon this subject is uncontradicted.

There are found in the record thirty-four letters from Bronson to Bostwick, all relating t business connected with the Bronson lands. The first letter bears date on the 12th of December, 1855, the last one on the 27th of November, 1865. They are in all respects such as would naturally be addressed by a principal to an agent in whose judgment, integrity, and diligence he had the fullest confidence. They refer to sales, to the delivery of deeds and contracts, the payment and collection of taxes, and a variety of other matters in the same connection. Ten of the letters authorize the delivery of contracts on the receipt of the first payment by Bostwick. Fourteen of them authorize the collection, or acknowledge the transmission, of other moneys. Bronson was absent in Europe from the 9th of October, 1861, until about the middle of December, 1864. During that time his business was attended to by his attorney, E. S. Smith, Esq., of the city of New York. There are in the record twenty-one letters from him to Bostwick. They are of the same character with those from Bronson. Twelve of them acknowledge the collection and transmission of moneys for Bostwick. It is not stated whether they were the first or later payments. But the circumstances show clearly that they were in most, if not in all instances, of the latter character. All collections were made, and all business relating to the lands was transacted through Bostwick. In one of these letters, Smith says:

'P. S.-Mr. Bronson, in a letter received, writes: 'I am willing to sell lands through Mr. Bostwick upon an advance of price equal to the depreciation of paper money at the time of sale," &c

A further analysis of the letters of these parties would develop a large array of additional facts bearing in the same direction and hardly less cogent than those to which we have adverted. There is no intimation in any of them that Bostwick was regarded as the agent of the buyers, that he was not regarded as the agent of Bronson, or that he had in any instance exceeded his authority. It is unnecessary to pursue the subject further. Viewed in the light of the law, we think the evidence abundantly establishes two propositions:

1. That Bostwick was the agent of Bronson, and as such authorized to receive the payments in question.

2. If this were not so-that the conduct of Bronson-numerous transactions between him and Bostwick and the course of business by the latter-authorized or known to and acquiesced in by the former-justified the belief by the defendants that Bostwick had such authority and that Bronson was bound accordingly.

DECREE AFFIRMED.


text: Talk:Bronson's Executor v. Chappell/Opinion of the Court


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Trebilcock v. Wilson

ERROR to the Supreme Court of the State of Iowa; the case being thus:

In June, 1861, Wilson gave to Trebilcock his promissory note for nine hundred dollars, due one year after date with ten per cent. interest, payable in specie; and, at the same time, to secure its payment, he and his wife executed and delivered to Trebilcock a mortgage, duly recorded, upon certain real property in Iowa.

In February, 1863, Wilson offered to pay the amount due on the note, principal and interest, and for that purpose tendered to Trebilcock such amount in United States notes, declared by the act of Congress of February 25th, 1862, to be a legal tender for all debts, public and private, with certain exceptions; but Trebilcock refused to receive them, asserting that the note was payable in gold or silver coin of the United States.

In July, 1865, Wilson and wife presented to one of the District Courts of Iowa their petition, reciting the contract to pay 'in specie,' and setting forth that they had tendered to Trebilcock the full amount of money, principal and interest, due, 'said money so offered and tendered being United States legal tender treasury notes, commonly called greenbacks;' setting forth, further, that Trebilcock had refused to accept the same, 'because,' among other reasons, 'the said money was not in kind what the contract demanded or called for;. . . the said defendant claiming that the same was payable only in gold or silver coin.' And praying finally that Trebilcock might be required, by decree, to release and discharge the mortgage upon the proper book of record, as required by law upon the payment of a mortgagedebt. The complainants averred that they had kept the money tendered, ready to pay the defendant, and that they brought the same into court for that purpose.

The defendant demurred to the petition, and for causes, among others of demurrer, set down the following:

'1st. The petition shows upon its face that by the contract the note could only be discharged by payment of the amount due thereon in gold.

'2d. The petition asks the aid of this court for the reason that the petitioners tendered the amount of the note described in the petition in United States treasury notes. Such tender is not good. There is no law of this State or of the United States making anything but gold and silver a legal tender in discharge of the contract set out in the petition. This contract was entered into on the 25th day of June, 1861. The law of Congress making United States treasury notes a legal tender in payment of debts does not apply to this contract, because it was not enacted until long after this contract was entered into, to wit, on the 25th day of February, 1862. To apply this law to this contract would be to make it a retrospective law, a law impairing the obligation of contracts, in violation of the Constitution of the United States.'

The court overruled the demurrer, and in September, 1866, gave its decree, that the mortgage be cancelled, and that the defendant enter satisfaction of it upon the record; thus holding that the tender in notes was legal and sufficient.

On appeal to the Supreme Court of Iowa, this decree was, in October, 1857, affirmed, and the defendant brought the case here on a writ of error, under the 25th section of the Judiciary Act of 1789.

That section was re-enacted, with some changes in its phraseology, by the 2d section of the act of 1867, amending the Judiciary Act of 1789. As the old section was the ground of argument at the bar and the new one is adverted to in the opinion of the court, both are here presented.

Judiciary Act of 1789.

'SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court [of law or equity] of a State in which a decision in the suit could be had,

'Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is AGAINST their validity,

'Or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity;

'Or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is AGAINST the title, right, privilege [or exemption], specially set up or claimed by either party, under such [clause of the said] Constitution, treaty, statute [or], commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error,. . . in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a [circuit] court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court [instead of remanding the cause for a final decision, as before provided], may at their discretion [if the cause shall have been once remanded before], proceed to a final decision of the same, and award execution [but no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record, and immediately respec § the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute].'

Amendatory Judiciary Act of 1867.

'SEC. 2. And be it further enacted, That a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had,

'Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is AGAINST their validity,

'Or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity;

'Or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is AGAINST the title, right, privilege [or immunity], specially set up or claimed by either party under such constitution, treaty, statute, commission [or authority], may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error,. . . in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court [of the United States]; and the proceeding upon the reversal shall also be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the same, and award execution [or remand the same to an inferior court].'

Mr. G. B. Corkhill, for the defendant in error, asked to have the case dismissed for want of jurisdiction, relying on Roosevelt v. Meyer, as in point. There Meyer, a mortgagor, tendered in United States notes, authorized by the act of February 25th, 1862 (the sort of notes tendered here), then at a discount of 4 per cent. for gold, to Roosevelt, his mortgagee, the amount due on a mortgage; one created in 1854, like this one, before the passage of the legal tender acts. Roosevelt refused the tender; demanding coin. The highest court of New York decided that the notes were a good tender; and though it appeared by the order of that court for judgment, that on the hearing of the case, Roosevelt relied on the provision of the Constitution, that 'the Congress shall have power to coin money and regulate the value thereof,' and of the 5th, 9th, and 10th amendments, which ordain that 'no person shall be deprived of property without due process of law;' that 'the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people;' and that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people'-against all which, as he contended the decision of the New York court sustaining the tender, had been,-this court dismissed the case for want of jurisdiction. They say that 'as the validity of the act of February 25th, 1862, was drawn in question, and the decision was in favor of it, this court could not take cognizance of the case.'

But if jurisdiction exists, the unsettled condition of the law of legal tender justifies asking a review of the whole subject; cases of coin contract (if this one falls within that class) as well as others.

Mr. G. W. McCrary, contra, relied for an answer to the point of jurisdiction, on Furman v. Nichols; and as to the matter of merits, on Bronson v. Rhodes.

Mr. Justice FIELD delivered the opinion of the court.

title: Trebilcock v. Wilson


text: Talk:Trebilcock v. Wilson

title: Talk:Trebilcock v. Wilson


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Trebilcock v. Wilson/Opinion of the Court

The principal question presented in this case for our consideration is, whether a promissory note of an individual, payable by its terms in specie, can be satisfied, against the will of the holder, by the tender of notes of the United States declared by the act of Congress of February 25th, 1862, to be a legal tender in payment of debts.

There is, however, a preliminary question of jurisdiction raised, which must be first disposed of. The State court, in holding the tender legal and sufficient, sustained the validity and constitutionality of the act of Congress declaring the notes a legal tender. Its decision was, therefore, in favor of, and not against, the right claimed by the plaintiffs under the act of Congress, and hence it is contended that the appellate jurisdiction of this court does not arise under the 25th section of the Judiciary Act of 1789. Some support is given to this view by the decision of this court in Roosevelt v. Meyer, where it was held that, as the validity of the legal tender act was drawn in question in that case, and the decision of the State court was in favor of it, and of the right set up by the defendant, this court had no jurisdiction to review the judgment, and a dismissal of the case was accordingly ordered. The court in that case confined its attention to the first clause of the 25th section of the Judiciary Act, and, in its decision, appears to have overlooked the third clause. That section provides for the review of the final judgments and decrees of the highest court of a State in which decisions could be had, in three classes of cases:

First. Where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;

Second. Where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; and,

Third. Where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the Constitution, treaty, statute, or commission.

Under this last clause the appellate jurisdiction of this court in the case of Roosevelt v. Meyer might have been sustained. The plaintiff in error in that case claimed the right to have the bond of the defendant paid in gold or silver coin under the Constitution, upon a proper construction of that clause which authorizes Congress to coin money and regulate the value thereof and of foreign coin; and of those articles of the amendments which protect a person from deprivation of his property without due process of law; and declare that the enumeration of certain rights in the Constitution shall not be construed as a denial or disparagement of others retained by the people; and reserve to the States or the people the powers not delegated to the United States or prohibited to the States.

The decision of the court below being against the right of the plaintiff in error claimed under the clauses of the Constitution, the construction of which was thus drawn in question, he was entitled to have the decision brought before this court for re-examination.

In the present case, as the defendant claimed a similar right upon a construction of the same and other clauses of the Constitution, and a like adverse decision of the court below was made, he is equally entitled to ask for a re-examination of the decision.

But the defendant also claimed a right to demand coin in payment of the note of the plaintiff by the acts of Congress regulating the gold and silver coins of the United States, and making them a legal tender in payment of all sums according to their nominal or declared values, contending that the act of 1862, making notes of the United States a legal tender for debts, did not apply to the contract in suit. He thus claimed in fact, although he did not state his position in this form, that, upon a p oper construction of the several acts together, he was entitled to payment in coin. This right having been denied by an adverse decision, he was clearly in a condition to invoke the appellate jurisdiction of this court for a review of the decision.

Nor is the appellate jurisdiction of this court, in this case, affected by the change in the language of the third clause of the 25th section of the Judiciary Act of 1789, by the 2d section of the amendatory judiciary act of February 5th, 1867. By this clause in the latter act the judgment or decree of the highest court of a State can be reviewed 'where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty, or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party, under such Constitution, treaty, statute, commission, or authority.' The section came incidentally before the court at the last term, in Stewart v. Kahn, but it was not deemed necessary to determine whether it had superseded the 25th section of the Judiciary Act of 1789. As there observed, it is to a great extent a transcript of that section; and several of the alterations of phraseology are not material. The principal addition is found in the second clause, and the principal omission is at the close of the section. But in this case, as in that, there is no occasion to express any opinion as to the effect of the new section upon the original. Under the new section, as under the old, if that be superseded, the plaintiff in error can seek a review of the decision made against the right claimed by him.

We proceed, then, to consider the merits of the case. The note of the plaintiff is made payable, as already stated, in specie. The use of these terms, in specie, does not assimilate the note to an instrument in which the amount stated is payable in chattels; as, for example, to a contract to pay a specified sum in lumber, or in fruit, or grain. Such contracts are generally made because it is more convenient for the maker to furnish the articles designated than to pay the money. He has his option of doing either at the maturity of the contract, but if he is then unable to furnish the articles or neglects to do so, the number of dollars specified is the measure of recovery. But here the terms, in specie, are merely descriptive of the kind of dollars in which the note is payable, there being different kinds in circulation, recognized by law. They mean that the designated number of dollars in the note shall be paid in so many gold or silver dollars of the coinage of the United States. They have acquired this meaning by general usage among traders, merchants, and bankers, and are the opposite of the terms, in currency, which are used when it is desired to make a note payable in paper money. These latter terms, in currency, mean that the designated number of dollars is payable in an equal number of notes which are current in the community as dollars.

This being the meaning of the terms in specie, the case is brought directly within the decision of Bronson v. Rhodes, where it was held that express contracts, payable in gold or silver dollars, could only be satisfied by the payment of coined dollars, and could not be discharged by notes of the United States declared to be a legal tender in payment of debts.

The several coinage acts of Congress make the gold and silver coins of the United States a legal tender in all payments, according to their nominal or declared values. The provisions of the act of January 18th, 1837, and of March 3d, 1849, in this respect, were in force when the act of February 25th, 1862, was passed, and still remain in force. As the act of 1862 declares that the notes of the United States shall also be lawful money and a legal tender in payment of debts, an this act has been sustained, by the recent decision of this court, as valid and constitutional, we have, according to that decision, two kinds of money, essentially different in their nature, but equally lawful. It follows, from that decision, that contracts payable in either, or for the possession of either, must be equally lawful, and, if lawful, must be equally capable of enforcement. The act of 1862 itself distinguishes between the two kinds of dollars in providing for the payment in coin of duties on imports and the interest on the bonds and notes of the government. It is obvious that the requirement of coin for duties could not be complied with by the importer, nor could his necessities for the purchase of goods in a foreign market be answered, if his contracts for coin could not be specifically enforced, but could be satisfied by an offer to pay its nominal equivalent in note dollars.

The contemporaneous and subsequent legislation of Congress has distinguished between the two kinds of dollars. The act of March 17th, 1862, passed within one month after the passage of the first legal tender act, authorized the Secretary of the Treasury to purchase coin with bonds or United States notes, at such rates and upon such terms as he might deem most advantageous to the public interest, thus recognizing that the notes and the coin were not exchangeable in the market according to their legal or nominal values.

The act of March 3d, 1863, amending the internal revenue act, required contracts for the purchase or sale of gold or silver coin to be in writing, or printed, and signed by the parties, their agents or attorneys, and stamped; thus impliedly recognizing the validity of previous contracts of that character without this formality. The same act also contained various provisions respecting contracts for the loan of currency secured by a pledge or deposit of gold or silver coin, where the contracts were not to be performed within three days.

Legislation of a later date has required all persons making returns of income, to declare 'whether the several rates and amounts therein contained are stated according to their values in legal tender currency, or according to their values in coined money,' and if stated 'in coined money,' it is made the duty of the assessor to reduce the rates and amounts 'to their equivalent in legal tender currency, according to the value of such coined money in said currency for the time covered by said returns,'

The practice of the government has corresponded with the legislation we have mentioned. It has uniformly recognized in its fiscal affairs the distinction in value between paper currency and coin. Some of its loans are made payable specifically in coin, whilst others are payable generally in lawful money. It goes frequently into the money market, and at one time buys coin with currency, and at another time sells coin for currency. In its transactions it every day issues its checks, bills, and obligations, some of which are payable in gold, while others are payable simply in dollars. And it keeps its accounts of coin and currency distinct and separate.

If we look to the act of 1862, in the light of the contemporaneous and subsequent legislation of Congress, and of the practice of the government, we shall find little difficulty in holding that it was not intended to interfere in any respect with existing or subsequent contracts payable by their express terms in specie; and that when it declares that the notes of the United States shall be lawful money, and a legal tender for all debts, it means for all debts which are payable in money generally, and not obligations payable in commodities, or obligations of any other kind.

In the case of Cheang-Kee v. United States, a judgment for unpaid duties, payable in gold and silver coin of the United States, rendered by the Circuit Court for the District of California, was affirmed by this cou t.

It is evident that a judgment in any other form would often fail to secure to the United States payment in coin, which the law requires, or its equivalent. If the judgment were rendered for the payment of dollars generally it might, according to the recent decision of this court, be paid in note dollars, and if they were depreciated, the government would not recover what it was entitled to receive. If, on the other hand, the value of the coin was estimated in currency and judgment for the amount entered, the government, in case of any delay in the payment of the judgment, by appeal or otherwise, would run the risk of losing a portion of what it was entitled to receive by the intermediate fluctuations in the value of the currency. From considerations of this kind this court felt justified in sustaining the judgment of the Circuit Court for California, requiring its amount to be paid specifically in coin, as being the only mode by which the law could be fully enforced. The same reasoning justified similar judgments upon contracts that stipulated specifically for the payment of coin. The twentieth section of the act 1792, establishing a mint and regulating the coins of the United States, in providing that the money of account of the United States shall be expressed in dollars, dimes, cents, and mills, and that all proceedings in the courts of the United States shall be kept in conformity with this regulation, impliedly, if not directly, sanctions the entry of judgments in this form. The section has reference to the coins prescribed by the act, and when, by the creation of a paper currency, another kind of money, expressed by similar designations, was sanctioned by law and made a tender in payment of debts, it was necessary, as stated in Bronson v. Rhodes, to avoid ambiguity and prevent a failure of justice, to allow judgments to be entered for the payment of coined dollars, when that kind of money was specifically designated in the contracts upon which suits were brought.

It follows from the views expressed, that the judgment of the Supreme Court of Iowa must be reversed, and that court directed to remand the cause to the proper inferior court of the State for further proceedings in conformity with this opinion;

AND IT IS SO ORDERED.

I dissent from the opinion of the court in this case for reasons stated in my opinion delivered in the cases of Knox v. Lee and Parker v. Davis. In all cases where the contract is to pay a certain sum of money of the United States, in whatever phraseology that money may be described (except cases specially exempted by law), I hold that the legal tender acts make the treasury notes a legal tender. Only in those cases in which gold and silver are stipulated for as bullion can they be demanded in specie, like any other chattel. Contracts for specie made since the legal tender acts went into operation, when gold became a commodity subject to market prices, may be regarded as contracts for bullion. But all contracts for money made before the acts were passed must, in my judgment, be regarded as on the same platform. No difficulty can arise in this view of the case in sustaining all proper transactions for the purchase and sale of gold coin.

In the case of Bronson v. Rhodes I expressed my dissent on the ground that a contract for gold dollars, in terms, was in no respect different, in legal effect, from a contract for dollars without the qualifying words, specie or gold, and that the legal tender statutes had, therefore, the same effect in both cases.

I adhere to that opinion, and dissent from the one just delivered by the court.


text: Talk:Trebilcock v. Wilson/Opinion of the Court


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The Protector (79 U.S. 700)

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

This was a motion by Mr. P. Phillips to dismiss an appeal from a decree of the Circuit Court of the United States in the Southern District of Alabama. A motion to dismiss an appeal from the same decree, for the reason that it was not brought within one year from the passage of the act of March 2d, 1867, had been made and denied at the December Term, 1869. The appeal was subsequently dismissed on another ground. The ground of this present motion was that more than five years, excluding the time of the rebellion, elapsed after the rendering of the decree, before the appeal was brought.

By the act of 1789, it is provided that writs of error shall not be brought but within five years from the rendering or passing the judgment or decree complained of. By the act of 1803, appeals from decrees were allowed, subject to the same reles, regulations, and restrictions as writs of error. As a writ of error is not brought until it is filed in the court where the judgment was rendered, so an appeal, as this court considers, is not brought until it is rendered or filed in the same way.

The decree in this case was rendered on the 5th of April, 1861, and the present appeal was allowed on the 6th of May, 1871, and filed in the clerk's office of the proper court, or brought, on the 17th of May, 1871.

In Hanger v. Abbott it was held that the statute of limitations did not run, during the rebellion, against citizens of States adhering to the national government having demands against citizens of the insurgent States. And the question of course was whether, making allowance for the suspension of time produced by the rebellion, the appeal was or was not in season.

Mr. Phillips contended that it was not; Mr. F. S. Blount, contra, urging that it was.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Protector (79 U.S. 700)


text: Talk:The Protector (79 U.S. 700)

title: Talk:The Protector (79 U.S. 700)


text:
The Protector (79 U.S. 700)/Opinion of the Court

The question, in the present case is, when did the rebellion begin and end? In other words, what space of time must be considered as excepted from the operation of the statute of limitations by the war of the rebellion?

Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken.

The proclamation of intend d blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second. But the war did not begin or close at the same time in all the States. There were two proclamations of intended blockade: the first of the 19th of April, 1861, embracing the States of South Corolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; the second, of the 27th of April, 1861, embracing the States of Virginia and North Carolina; and there were two proclamations declaring that the war had closed; one issued on the 2d of April, 1866, embracing the States of Virginia, North Corolina, South Corolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and the other issued on the 20th of August, 1866, embracing the State of Texas.

In the absence of more certain criteria, of equally general application, we must take the dates of these proclamations as ascertaining the commencement and the close of the war in the States mentioned in them. Applying this rule to the case before us, we find that the war began in Alabama on the 19th of April, 1861, and ended on the 2d April, 1866. More than five years, therefore, had elapsed from the close of the war till the 17th of May, 1871, when this appeal was brought. The motion to dismiss, therefore, must be

GRANTED.


text: Talk:The Protector (79 U.S. 700)/Opinion of the Court


text: Bethell v. Mathews

title: Bethell v. Mathews


text: Talk:Bethell v. Mathews

title: Talk:Bethell v. Mathews


text:
Bethell v. Mathews/Opinion of the Court

ERROR to the Circuit Court for the District of Louisiana, the case being this:

The act of Congress of March 3d, 1865, authorizing the Circuit Courts of the United States, on written stipulation of the parties or their attorneys filed, to try issues of fact in civil cases without the intervention of a jury, enacts that—

'§ 4. The findings of the court upon the facts. . . shall have the same effect as the verdict of a jury.'

With this statute in force, Bethell sued Mathews in the court below on certain promissory notes. A written stipulation signed by the parties was filed, waiving a jury and submitting the cause for trial by the court. It was so tried, accordingly. Six bills of exception, all by the defendant, were taken to testimony offered by the plaintiff, and all overruled. On the 2d of May, 1870, for reasons orally assigned, the court, not having made any findings of fact, ordered 'that judgment be entered in favor of the defendant,' and it was so signed accordingly four days afterwards. On the 10th of June, thirty-nine days after the judgment was rendered, the counsel filed a 'statement of facts proved in the case,' which statement was signed by them. The present writ of error was taken to review the judgment given in the case; the record disclosing the proceedings as above mentioned.

Messrs. Miles Taylor and C. N. Morse, for the plaintiff in error, submitted the case on merits.

The facts or case should have been found by the court. The statute is imperative. A case agreed on by connsel after the judgment cannot possibly be intended as found by the court. At any rate the finding should precede the judgment.

There is, then, only a general finding in favor of the defendant, which must have the same effect as a similar finding of a jury. The case is thus presented to this court, as if on a writ of error to a judgment of the court rendered on a general verdict in favor of the defendant in error, and where there is no question arising on the pleadings, and where there was no ruling on the trial of the cause against the plaintiff in error. In such a case the judgment of the lower court must be affirmed as of course.

It has been often decided that a plaintiff in error cannot take advantage of rulings upon exceptions in his own favor, even if erroneous. Nor can a statement of facts signed by counsel be noticed upon error. In this case, then, not only was the statement so signed, but it does not appear to have been made and filed until after the judgment.

There is, therefore, no error in the record, or none of which we can take notice. The judgment of the Circuit Court for the District of Louisiana must be

AFFIRMED.

title: Bethell v. Mathews/Opinion of the Court


text: Talk:Bethell v. Mathews/Opinion of the Court


text:
Norwich Transportation Company v. Flint

ERROR to the Circuit Court for the District of Connecticut.

Flint brought an action on the case in the court below against the Norwich and New York Transportation Company, to recover damages for an injury received by him in June, 1864, while a passenger on their steamboat, running from New London to New York. The plaintiff, with other passengers from Boston, went on board of the boat at New London about eleven o'clock in the evening. A detachment of United States soldiers-sixty, perhaps, in number-were on board, and were behaving in a disorderly and riotous manner, having overpowered their sentinels and rushed to the after-deck set apart for passengers. A portion of the detachment, which had been assigned as a guard over the rest, were armed, and in the melee a musket was thrown upon the deck and discharged, and the bell entered the plaintiff's foot, injuring him severely. His action was based on a charge of negligence on the part of the defendants in not providing against and quelling the disturbance. At the trial of the cause, after considerable evidence had been adduced tending to show the transactions which occurred on the boat at the time of the injury, the plaintiff offered in evidence the testimony of certain passengers, who testified that after they had gone down to the dining saloon, and were at the table, a man in military uniform, whom they supposed from the stripes on his arm to be a sergeant, came into the saloon and saluted an officer in uniform, whom they supposed to be a lieutenant, and who was sitting at the table with another officer, whom, from his uniform, they supposed to belong to the navy, and said to him, 'There is a row on deck, and I cannot suppress it;' that the officer addressed replied, 'Mind your orders;' that the sergeant said, 'I am afraid some one will be hurt;' that the officer replied, 'You have your orders mind your orders;' that the sergeant then retired, and, after a few minutes, came down again into the saloon hurriedly, very soon after the report of a gun had been heard, and said to the officer, 'For God's sake, come up; a man has been shot!' This testimony was offered for the purpose of proving the condition of offairs on the deck, the extent and character of the disturbance, the condition and situation of the officers and soldiers on board, and the manner in which they discharged their duty prior to and at the time when the plaintiff received his injury, the time the disturbance continued, and the failure of the officers of the soldiers to repress the disorder, it being admitted that no other persons on board were directly charged with the care of preserving order among them.

The defendant objected to the testimony thus offered, but the court received it. As appeared from its opinion, which had been printed for the use of this court, the court below regarded the evidence admissible: 'as indicating, first, the relation of the sergeant to his officer-not as a mere declaration, but as an act of subordination; second, as showing the alarm and fright of the sergeant and a state of mind indicating need of assistance; and, finally, because the whole transaction was a part of the res gestae, in such sense that the jury might properly be permitted to hear it.' The connection of the whole testimony with the circumstances of the case, gave it, in the opinion of that court, 'credit and significance, not as the isolated act or statement of the sergeant, but as a narrative of occurrences in their connection with the principal events, receiving significance and inviting belief.'

The jury having found $10,000 for the plaintiff, and judgment being given accordingly, the transportation company brought the case here; the admission of the evidence being the only error relied on.

Mr. J. Halsey, for the plaintiff in error:

The evidence was inadmissible for the purpose of proving the state of affairs on deck prior to and at the time the plaintiff received his injury; because,

1. As evidence of the truth of the words spoken, it was mere hearsay.

2. It was not spoken in the presence and hearing of any officer of the boat. It was res inter alios acta.

3. It was not addressed to any agent or officer of the defendants.

4. It was no part of the res gestae.

5. The declarations were not admissible as part of the transaction. What is the transaction but a description of the person who said the words, and the person to whom they were addressed? The transaction in and of itself was nothing. Declarations of this sort having been allowed to go to the jury, and counsel to comment upon them as evidence of the condition of affairs on deck, the jury regarded it in the same way that it would have done the sworn evidence of an eye-witness; which certainly it was not.

Mr. R. H. Dana, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Norwich Transportation Company v. Flint


text: Talk:Norwich Transportation Company v. Flint


text:
Norwich Transportation Company v. Flint/Opinion of the Court

It is hardly necessary for us to enter into a lengthy discussion on the admissibility of the testimony in question. The opinion of the Circuit Court, which has been laid before us, is sufficiently full on the subject, and need not be repeated. We have no hesitation in regarding the incident testified to as part of the res gestae, and as entirely competent for the purposes for which it was offered. The statements of the sergeant were not offered in evidence for the purpose of proving the facts stated by him, but the whole incident (including those statements) was adduced in evidence for the purpose of showing the manner in which the officers attended to their duty whilst the disturbance was going on, the fact that notice of its progress was communicated, the time that it continued, and the degree of alarm it was calculated to excite in such a person as the sergeant appeared to be. These were substantially the purposes for which the evidence was professedly offered, and for these purposes, as part of the res gestae, it was clearly competent.

JUDGMENT AFFIRMED.


text: Talk:Norwich Transportation Company v. Flint/Opinion of the Court


text:
Yeager v. Farwell

ERROR to the Circuit Court for the District of Missouri, the case being thus:

Yeager & Co., shippers of flour, in St. Louis, and intimately associated with one Kerckhoff, a miller of that place, who was then building a mill, and needing $15,000 to complete it, wrote to Farwell & Co., flour commission merchants and capitalists, of Boston, intimate correspondents of their own, telling them what Kerckhoff was doing; that he wanted $15,000; that he would give security by trust deed on a valuable farm near St. Louis; that the security was good, and urging them to lend him the amount, 'for, say one or two years, or even one year, after which,' says the letter, 'we would make the advances ourselves.' As an inducement for 'coming to a favorable conclusion on their proposition,' they request Farwell & Co. to bear in mind that they, Farwell & Co., will get, as flour commission merchants in Boston, a large share of the business of the new mill.

Farwell & Co. did not (so far as their real wishes were expressed in their letters) seem much disposed to lend the money; at least they wanted 13 per cent. interest. However, on some remonstrance at such a rate from Yeager & Co., who proposed 10 per cent., they conclude 'to come as near the wishes of Yeager & Co. as they can,' and to lend the money at 12 per cent., provided, 'first and foremost,' they can feel that the farm is good and ample security beyond a question, for which certainty they say that they rely on Yeager & Co. 'The rate of interest,' they add, 'in itself is no object, for we can use our money to better advantage in Boston; but, desiring very much,' they continue, 'to accommodate you, and for the further consideration of getting a large share of the business of the new mill, we are willing to lend you the money on the above terms, but shall be very glad if you can obtain it more cheaply.'

Yeager & Co. now directed a note for the $15,000 and a trust deed of the farm to be prepared, and both were executed and the deed put on record. For some reason the rate of interest on both was put at 10 per cent, instead of 12, the rate agreed on. There were also certain clerical errors in the deed of trust, showing some carelessness in the preparation of it. Farwell & Co., on receiving the papers, and not having themselves as yet advanced any part of the money (though Yeager & Co. had advanced about $4000 to Kerckhoff as on account of the $15,000), noted the departure from the rate of interest proposed, as also the clerical errors in the deed. They accordingly returned both papers to Yeager & Co., saying, in regard to the interest, that unless a new note should be made, the drafts on them by Kerckhoff must be for 2 per cent. less, and requesting, unconditionally, that one of the clerical errors, deemed by them more important, in the deed, should be rectified, remarking that they think it better to have it put right 'in the beginning.' In the letter inclosing the papers they add:

'And, too, we will thank your Mr. Yeager to indorse the notes in the name of your firm, or his individual name, as may be preferred. This will do him no harm, and will be an accommodation to us.'

Yeager did accordingly indorse the note with his firm's name, and the clerical error in the deed and in the record of it was corrected. After this, the balance of the $15,000 was advanced by Farwell & Co. to Kerckhoff as drawn for by him.

The note, which by its terms was payable at one of the banks in Boston, fell due October 15th to 18th, 1867, but it was not paid, neither was demand of payment made, or any notice of dishonor given to the indorsers, Yeager & Co.

On the 18th of October, 1867, the last day of grace, Yeager & Co., not knowing, of course, what had or had not been, or would or would not be then done in or about the note in Boston, wrote this letter from St. Louis to Farwell & Co.:

ST. LOUIS, October 18th, 1867.

GENTLEMEN:

Mr. Kerckhoff fully expected to be able to place funds in our hands in time for us to have them with you to-day to meet his note of $15,000, but owing to the stringency of the money market, he has been unable thus far to complete arrangements to raise the money so as to have it in your hands to-day; but in a week or ten days it will be forthcoming, and he assures us it will be done without fail, and feels very sorry that circumstances were such as to prevent his meeting the note at maturity. We also feel very much annoyed about it, but we hold ourselves responsible for the payment of this note, and shall see that it is done at an early day. Thanking you for your many acts of kindness to us, we are

Yours, very truly,

YEAGER & CO.

Of course this letter did not reach Boston until some days after the last day of grace.

The note not being paid, the farm was sold under the trust deed, but did not bring enough to pay the sum due on the note. Thereupon Farwell & Co. sued Yeager & Co., in assumpsit, as indorsers of the note. The defences were:

1. That the indorsement was made at the instance and special request of the plaintiffs, after the note had passed into their possession, solely as an accommodation to them, and without any value or consideration whatever.

2. That if this was not so, and if Yeager & Co. had ever been liable as indorsers, they had been discharged by want of demand on the maker, and notice of non-payment to them.

The plaintiffs disclaimed all demand on the defendants as guarantors.

The court charged 'that if Yeager & Co. placed their names on the back of the note before the negotiations for the loan by the plaintiffs was closed, or before the plaintiffs advanced any money on the said loan, they were liable as indorsers.'

Verdict and judgment accordingly, and writ of error here.

Messrs. G. P. Strong, Slayback, and Haeussler, for the plaintiffs in error:

The suit is against Yeager & Co., as indorsers simply No claim is made on them as guarantors. Now,

1st. The indorsement was made after the execution of the papers, and after the record of the trust deed, by which the lien on the farm attached. It was purely at the instance of Farwell & Co. as 'an accommodation' to them, and on their assurance that it should do 'no harm' to Yeager. On such an indorsement the original indorsers cannot recover.

2d. If this is not so, still the whole case of the other side rests on Yeager & Co.'s letter of the 18th October, 1867. But, when this letter reached Boston and was accepted, Yeager & Co. had been discharged from all liability for several days. The idea of the court below was, of course, that the letter was a waiver of demand of payment, and notice of non-payment. But there is not a word in the letter about either. To give such a letter value, for the purpose for which it is used, the other side should show that, in consequence of it, the holder of the note had omitted to make demand and to give notice (which assumes that the letter had been written before the time for demand); or show (if the letter was written after the demand) that it was written with full notice of the fact that no demand was made. Neither can be here pretended. The letter is used as a mere godsend in the case, and to reimpose, without consideration, a liability confessedly once clear gone. That it cannot do.

Mr. T. T. Gantt, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Yeager v. Farwell


text: Talk:Yeager v. Farwell

title: Talk:Yeager v. Farwell


text:
Yeager v. Farwell/Opinion of the Court

First. Were Yeager & Co. indorsers of the notes in controversy.

Secondly. If so, were Farwell & Co. relieved from the necessity of proving on the trial that they demanded payment of the maker, and gave notice to the indorsers of the dishonor of the note.

It is very clear that Yeager & Co. were liable as indorsers, if they placed their names on the bank of the note in question before Farwell & Co. closed the negotiations for the loan to Kerckhoff, or made any advances on it to him. And the condition of the parties is not altered by the fact that Yeager & Co., without consideration, indorsed the note at the request of Farwell & Co. after negotiations concerning the loan had been some time in progress, and when they had a right to suppose Farwell & Co. were satisfied with the landed security which Kerckhoff offered. It may be true that Farwell & Co. originally intended to let the money go on the security of the trust deed, but they were not legally bound to do so, and could alter their minds on the subject, and forbear to loan the money unless Yeager & Co. (who were the middlemen in the negotiation) should also indorse the note. If they chose to do this before the transaction was completed or any portion of the money loaned was actually advanced to Kerckhoff, then their liability as indorsers is fixed, and so the learned court told the jury. Whether the indorsement was before or after the conclusion of the negotiations for the loan, or before or after the advancements to Kerckhoff, were questions of fact for the determination of the jury. As there was evidence tending strongly to support the finding of the jury on this point, and as they were correctly instructed in relation to it, the plaintiff in error cannot justly complain of the action of the jury.

The undertaking, however, of the indorser of a negotiable note is only to pay it in case the maker does not, and he is immediately notified of this default. The remaining defence set up in this action is, that this was not done, and, therefore, the indorsers were not chargeable. But the indorser can, by his own conduct, place himself in such a position that he is estopped from alleging want of demand and notice of non-payment. Although, accurately speaking, there can only be a waiver of demand and notice by the indorser before the note is due, yet, after it is due, he can waive proof of them; or, what is more to the purpose, he can so act towards the holder of the note as to render the fact that demand was not made or notice given wholly immaterial. The inquiry is, whether Yeager & Co. have, by their course of action, put themselves in this category. The court below held that they had, and, as the evidence on the subject was undisputed, took it from the jury and decided it as a question of law.

The letter of Yeager & Co., which constituted this evidence, substantially informed the Farwells that Kerckhoff was unable to pay his note, but would be able to do so in a week or ten days at farthest. After expressing the annoyance felt by the writers, on account of the dishonor of the paper, it concludes in these words: 'But we hold ourselves responsible for the payment of the note, and shall see it is done at an early day.'Necessarily, this letter could not have reached its destination in due course of mail until after the note was due; but, for the purpose of holding the indorser, this is immaterial, for, as we have seen, he can dispense with the conditions for his benefit as well after as before the paper matures. It has been held by this court, in Sigerson v. Mathews, that if the indorser, with full knowledge of the fact that no demand has been made or notice given, makes a subsequent promise, he is liable, and cannot, when sued, set up as a defence the want of such demand and notice; and to the same effect are the decisions of the courts in this country generally. Applying the principle of these decisions to the admitted facts of this case there is no difficulty in charging the indorsers. Their promise to pay was expressly made after they knew of the laches of the maker of the note, and they cannot now be allowed to repudiate it.

The most formal demand and notice could have been of no service to them, for they knew the demand would be useless, and the notice could only tell them what they were advised of without it. Acting under the weight of the knowledge of Kerckhoff's default, they did not choose to wait in order to see whether Farwell & Co. had taken the requisite steps to charge them, but preferred at once to acknowledge their liability, and, accordingly, made the direct promise to pay the note. Under these circumstances this promise is binding, and does not require for its enforcement the proof of demand and notice.

JUDGMENT AFFIRMED.

title: Yeager v. Farwell/Opinion of the Court


text: Talk:Yeager v. Farwell/Opinion of the Court


text:
Webb v. Sharp Marshal

ERROR to the Supreme Court of the District of Columbia; the case being this:

By the act of Congress, passed February 22d, 1867, the right of distress for rent in the District of Columbia was abolished, and instead thereof, it was enacted, 'that the landlord shall have a tacit lien upon such of the tenant's personal chattels upon the premises as are subject to execution for debt, to commence with the tenancy and continue for three months after the rent is due, and until the termination of any action for such rent brought within said three months.' And under the act this lien may be enforced:

(1.) By attachment, to be issued upon affidavit that the rent is due and unpaid; or, if not due, that the defendant is about to remove or sell all, or some, of said chattels; or,

(2.) By judgment against the tenant and execution, to be levied on said chattels, or any of them, in whosesoever hands they may be found; or,

(3.) By action against any purchaser of any of said chattels, with notice of the lien.

This act of Congress being in force, one Polkinhorn, owner of a house in Washington City, leased it to Snow et al. for a printing-office, and they afterwards bought and placed a printing-press therein. Subsequently, on the 11th of December, 1867, they borrowed money, and executed to one Webb a deed of trust to secure the repayment of the loan, the press, however, still remaining on the premises leased. The loan, though it became due, was never paid. And the tenants falling behind in payment of their rent also, Polkinhorn, their landlord, attached the printing-press; the rent for which the attachment was made having accrued in 1869, within three months prior to the issuing of the attachment. Judgment being perfected on the attachment a writ of fieri facias was issued to the marshal of the District, who levied on the press, then still remaining upon the premises. Hereupon Webb, the trustee, under the deed of trust, issued a replevin against the marshal in the court below. That court adjudged that the plaintiff should take nothing by his suit, and that the marshal have a return of the printing-press. From this judgment Webb brought the case here.

Mr. S. S. Hencle, for the plaintiff in error:

The deed of trust conveyed the printing-press completely out of Snow et al., and vested it completely in Webb, as trustee. It was no longer 'the tenant's personal chattels on the premises, subject to execution for debt.' Yet it is only on such chattels that the lien is given by the statute.

Mr. W. F. Mattingly, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Webb v. Sharp Marshal


text: Talk:Webb v. Sharp Marshal

title: Talk:Webb v. Sharp Marshal


text:
Webb v. Sharp Marshal/Opinion of the Court

The question is, whether the lien of the landlord is, or is not, superior to that of the trustee. The Supreme Court of the District decided that it is, and in that opinion we concur.

It will be seen by reference to the act of Congress passed February 22d, 1867, and which governs the subject, that it is clear and explicit that the landlord shall have a lien upon the tenant's chattels on the premises (liable to execution), 'to commence with the tenancy and continue for three months after the rent is due.' It also points out how, within the three months, the lien is to be enforced, namely, by attachment, &c. In this case the chattel was on the premises, it was attached within three months after the rent accrued, the suit on the attachment was regularly prosecuted to judgment, and the marshal took the chattel in execution. The case is strictly within the language of the act, unless the press was not 'such a chattel of the tenant as is subject to execution.'

The plaintiff in error contends that the deed of trust, being a valid instrument, the property became vested in the trustee, and the press was not liable to be taken in execution for the debts of the tenant, and, therefore, that the act does not give the landlord a lien, because the lien given by the act is only upon such chattels of the tenant as are subject to execution.

The deed of trust was, in effect and purpose, nothing but a mortgage. It was given to secure the payment of a loan. It was an express lien created by deed to secure the performance of a contract. The landlord's lien is an implied or tacit lien, created by law to secure the performance of another contract, and, of the two, the landlord's is the prior lien, and cannot be displaced by the other. The landlord's lien attached to the printing-press the moment it was placed upon the demised premises, before the mortgage was given, and as long as it remained on the premises the lien continued until each instalment of rent became due and for three months afterwards, and then ceased as to that instalment. Had the tenant made an absolute and bon a fide sale of the press, the case would have been a different one. The law protects bon a fide purchasers without notice of the landlord's lien. Goods sold in the ordinary course of trade undoubtedly become discharged from the lien; otherwise business could not be safely carried on. This was so decided by the Supreme Court of Iowa in giving construction to a similar law of that State. But neither the words nor the reason of the law call for a postponement of the landlord's lien to that of a subsequent mortgage or execution creditor, so long as the goods remain on the demised premises and continue to be the property of the tenant.

As to the suggestion that this press was not subject to execution, we apprehend that a deed of trust does not protect goods from sale by execution. The owner has still an interest, or equity of redemption in them, which is subject to sale; and a purchaser at an execution sale would be entitled to redeem the goods from the deed of trust by paying the debt secured thereby. When the law imposes the lien only upon such goods of the tenant upon the premises as are subject to execution, it means to exclude goods which are exempt from execution by some general or special law, such as those which a man is entitled to retain, against all executions, for the use of his family or the practice of his trade.

JUDGMENT AFFIRMED.


text: Talk:Webb v. Sharp Marshal/Opinion of the Court


text:
Boyden v. United States

IN error to the Circuit Court for the District of Wisconsin.

The United States sued Boyden and his sureties on his official bond as receiver of public moneys for the district of lands subject to sale at Eau Claire, in the State of Wisconsin. The bond was given pursuant to the 6th section of the act of May 10th, 1800. The section enacts:

'The receiver of public moneys shall, before be enters upon the duties of his office, give bond with approved security for the faithful discharge of his trust.'This bond was conditioned, that if the said Boyden truly and faithfully executed and discharged all the duties of his said office according to law, then the obligation should be void. The breach alleged was, that Boyden had received as receiver $5088, of the moneys of the United States, which he had not paid over to the United States, 'although often requested so to do.'

The defendants pleaded as one plea, that Boyden had been violently robbed of the said sum of money; and under a notice that they would give in such evidence offered upon the trial to prove that, on the 23d of December, 1859, at Eau Claire, in the State of Wisconsin, while in the land office of the United States for that land district, he the said Boyden, then and there being the receiver of public moneys for said district, and then and there being in the discharge of the duties of his office as such receiver, was suddenly beset by some person or persons to him unknown, and thrown down, and against all defence that he could make, was gagged and bound, and the moneys described in the complaint violently, and without his fault, taken from him and carried away.

To the introduction of this evidence the United States objected, upon the ground that the facts as offered to be proved constituted no defence. The court sustained the objection, and the defendants excepted.

Judgment having been given for the United States, the defendant brought the case here.

The assignments of error were:

1. That the evidence offered was improperly rejected.

2. That the declaration did not state a cause of action. This second assignment being founded on the fact that an act of August 6th, 1846, requires all receivers of public moneys to keep in their possession all of the moneys by them treceived, until the same is ordered by the proper department or officer of the government to be transferred or paid out; and that the amendatory act of March 3d, 1857, requires persons having moneys of the United States in their hands, to pay them to the Treasurer, the Assistant Treasurer, or public depositary of the United States, when required by the Secretary of the Treasury, or any other department.

The case was twice argued.

Messrs. M. H. Carpenter and M. M. Cothren, for the plaintiff in error:

I. The sureties contract for such capacity and fidelity as man may possess, and as may be suitable for the employment of their principal. The duty of the principal is measured by physical possibility. Their liability is no greater. They do not undertake that an earthquake shall not swallow up the property of the government; nor that the public enemy, or a robber shall not, despite all resistance that can be made by the custodian, seize, and carry away the funds of the government. At the common law, an officer was not responsible for loss of public or private funds, except upon the ground of negligence or default. This is old law, settled in Lane v. Cotton, reported by Lord Raymond, and in Whitfield v. Le De Spencer, reported in Cowper. The principle is adopted in our own country, as is seen by the case of the Supervisors of Albany v. Dorr et al., where it was held by the Supreme Court of New York, that a 'public officer intrusted with the receipt and disbursement of public funds, is not responsible for money stolen from his office, where there is no imputation of negligence or other default on his part.' Nelson, C. J., in giving the opinion, places emphasis upon the condition of the bond being for the faithful execution of the duties of his office, and says that this condition recognizes the common law rule. The case was affirmed by the Court of Errors. The later case of Muzzy, Supervisor, v. Shattuck, in the same State, which might appear to conflict with this decision, was placed upon the construction of a statute, which was peculiar in its provisions, and, in the opinion of the court, rendered the collector a debtor for the amount by him collected, and his sureties guarantors for the payment of the debt. It therefore does not conflict with Supervisors of Albany v. Dorr, nor with the common law rule as to official liability; but only interprets and gives effect to a particular statute.

The very terms of the statute of 1800, under which this bond was given, make the receiver an agent, trustee, or bailee. Persons occupying such relations are only responsible for the same kind of negligence that bailees are liable for; and certainly the settled rule is, that bailees in general are not responsible for losses resulting from inevitable accident or irresistible force. It is the government that is to protect the citizen against the public enemy, and the private robber; and not the citizen who is to protect the government against losses by either.

The United States v. Prescott et al., which might be cited against us, does not apply. In that case the sureties had undertaken in addition to the common law obligation of sureties upon an official bond, that the principal

'Has well, truly, and faithfully, and shall well, truly, and faithfully keep safely, without loaning or using, all the public moneys collected by him, or otherwise at any time placed in his possession and custody, till the same has been or shall be ordered, by the proper department or officer of the government, to be transferred or paid out. And when such order for transfer or payment has been, or shall be received, has faithfully and promptly made, and will faithfully and promptly make the same as directed.'

The conditions of that bond enlarged the obligations of the contractors beyond the contract in this case. And the contract may well have been considered a contract of insurance with the government, that all moneys which might come into the hands of the principal should be paid in the manner stipulated.

Moreover, the rule was only applied to a case of theft. The defence in this case is quite different. It is robbery. Public policy may require such vigilance upon the part of public officers as that theft can never occur. This, upon principle, would render theft no defence. Not so with robbery. That is a crime against which the utmost vigilance cannot guard. If the guardian be strong, the robber may be stronger. If government cannot so administer law as that its own property will be safe from the bandit, it ought to sustain its own losses, unless the citizen has contracted to make them good.

So too, United States v. Dashiel, was a case of stealing, while in United States v. Keehler, a postmaster in North Carolina, who during the rebellion had paid money of the United States to the rebel authorities, in obedience to a statute of the rebel States, and to 'a regular official order under it,' was held not discharged, because the case did 'not show the application of any physical force to compel the defendant to pay.' The intimation is, that had force been shown, he would have been held discharged.

II. The declaration does not state any cause of action. From the act of 1846, and the amendatory one of 1857, it is obvious, that until some order is made by the head of the proper department, no cause of action accrues against a receiver. The declaration here does not state that any order or requisition was ever made upon Boyden to transfer or pay over. This being so, there is a judgment without anything to base it upon.

Messrs. B. H. Bristow, Solicitor-General, and W. A. Field and C. H. Hill, Assistant Attorneys-General, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Boyden v. United States


text: Talk:Boyden v. United States

title: Talk:Boyden v. United States


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

Were a receiver of public moneys, who has given bond for the faithful performance of his duties as required by law, a mere ordinary bailee, it might be that he would be relieved by proof that the money had been destroyed by fire, or stolen from him, or taken by irresistible force. He would then be bound only to the exercise of ordinary care, even though a bailee for hire. The contract of bailment implies no more except in the case of common carriers, and the duty of a receiver, virtute officii, is to bring to the discharge of his trust that prudence, caution, and attention which careful men usually bring to the conduct of their own affairs. He is to pay over the money in his hands as required by law, but he is not an insurer. He may, however, make himself an insurer by express contract, and this he does when he binds himself in a penal bond to perform the duties of his office without exception. There is an established difference between a duty created merely by law and one to which is added the obligation of an express undertaking. The law does not compel to impossibilities, but it is a settled rule that if performance of an express engagement becomes impossible by reason of anything occurring after the contract was made, though unforeseen by the contracting party, and not within his control, he will not be excused. The rule has been applied rigidly to bonds of public officers intrusted with the care of public money. Such bonds have almost invariably been construed as binding the obligors to pay the money in their hands when required by law, even though the money may have been lost without fault on their part. It is true that in the case of the Supervisors of Albany v. Dorr et al., in the Supreme Court of New York, it was decided in a suit on a bond of a county treasurer, conditioned for the payment of all money that should come into his hands as treasurer, that he was not responsible for the public money feloniously stolen from his office without any negligence, want of due care, or other blame or fault whatever on his part; and this decision was affirmed in the Court of Appeals of that State, only, however, by an equal division. It was rested upon the supposed liability of the officer, virtute officii, which it was thought his bond did not increase, and it was supposed to be sustained by Lane v. Cotton, and Whitfield v. Le De Spencer. It is quite plain, however, that those cases do not sustain it. They were actions upon the case against the Postmaster-General, brought not by the government, but by private individuals to recover damages for the negligent failure to deliver letters, and the defendants were held not liable for money stolen, even by their subordinates in office. At most the Postmaster-General was a mere bailee, and no question was raised respecting the effect of a bond to secure the performance of his duties. But, whatever may have been the ruling in the case of the Supervisors of Albany v. Dorr, it is no longer authority, even in the State of New York. Muzzy, Supervisor, v. Shattuck et al., subsequently decided, and affirmed unanimously in the Court of Appeals, is utterly irreconcilable with it, and it has settled the law otherwise in that State. So in Pennsylvania, in Commonwealth v. Comly, it was ruled that the responsibility of a public receiver depends on his contract, when there is one, and not on the law of bailments. There the condition of the bond was to account and pay over, and it was held no defence by the surety of the receiver that the money was stolen, though it was kept as a prudent man would keep his own funds. It was said by Chief Justice Gibson, in delivering the judgment of the court, after referring to the fact, that a lessee is not relieved from payment of rent by destruction of the demised premises by fire, 'A loss by a visitation of Providence, which no vigilance could prevent, would present a more meritorious claim for relief, one would think, than a los by robbery, which is always preceded by a greater or less degree of negligence. A receiver, or his surety, would come before a chancellor with an ill grace on that ground, even if there was a power to relieve him. The keepers of the public moneys, or their sponsors, are to be held strictly to the contract, for if they were to be let off on shallow pretences, delinquencies, which are fearfully frequent already, would be incessant. A chancellor is not bound to control the legal effect of a contract in any case; and his discretion, were he at liberty to use it, would be influenced by considerations of general policy.' State v. Harper is to the same effect. This is precisely the ground which this court has taken. In The United States v. Prescott it was decided that the felonious taking, stealing, and carrying away the public money in the hands of a receiver of public money, without any fault or negligence on his part, does not discharge him or his sureties, and that it cannot be set up as a defence to any action on his official bond. The condition of the receiver's bond in that case, it is true, was that the receiver should pay promptly when orders for payment should be received, while the bond in the case before us is conditioned that Boyden, the receiver, had truly executed and discharged, and should continue truly and faithfully to execute and discharge all the duties of said office according to law. But the acts of Congress respecting receivers made it their duty to pay the public money received by them when ordered by the Treasury Department, and that department, by its general orders of 1854, required payment to be made before this suit was brought. No exception was made, no contingency was contemplated. The bond, therefore, was an absolute obligation to pay the money, and differing not at all, in legal effect, from the bond in Prescott's case. A similar ruling was made in United States v. Dashiel. What the condition of the bond on which suit was brought in that case was, does not appear in the report, but it was for the discharge of the paymaster's official duty. The doctrine of Prescott's case was also recognized in United States v. Keehler, and it must be considered as settled law. Applying it to the case now in hand, it makes it clear that the evidence offered by the defendants, tending to prove that the receiver had been robbed of the public money received by him, was rightly rejected as constituting no defence to the suit on the receiver's bond. It is true that in Prescott's case the defence set up was that the money had been stolen, while the defence set up here is robbery. But that can make no difference, unless it be held that the receiver is a mere bailee. If, as we have seen, his liability is to be measured by his bond, and that binds him to pay the money, then the cause which renders it impossible for him to pay is of no importance, for he has assumed the risk of it.

There is nothing in the second error assigned. Though under the acts of Congress of August 6th, 1846, and the amendatory act of March 3d, 1857, receivers are required to pay when required by the Secretary of the Treasury, there were general orders made for all receivers, requiring payments to be made at stated times, which were in existence when this receiver's bond was given. The declaration avers a request, and this is enough after verdict.

JUDGMENT AFFIRMED.

[See infra, p. 56, Bevans, Receiver, v. United States.]


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


text:
United States v. Wormer

APPEAL from the Court of Claims.

The claimant demanded $15,000 from the government by way of damages for breach of contract. The principal facts were that on the 26th day of February, 1864, he entered into a written agreement with the chief quartermaster of the Cavalry Bureau to deliver at the government stables in St. Charles, Illinois, by or before the 26th of March, 1200 cavalry horses, sound, and of certain specified ages, height, and quality, and on delivery to be examined and inspected without unnecessary delay by a person or persons to be appointed by the government. Rejected horses were to be removed by the contractor within one day after receiving notice of their rejection. Payment was to be made on completion of the contract, should Congress have made an appropriation for that purpose, or as soon thereafter as funds might be received. Instructions for inspectors of cavalry horses were issued a few days after the date of the contract, which required, amongst other things, that horses proposed for sale to the government should be placed in the inspection yard at least twenty-four hours before inspecting them; and none but the inspector and his assistants were to be allowed to enter the yard or to handle the horses until the inspection was completed. It was also provided that all horses which were manifestly intended as a fraud upon the government, because of incurable disease, or any purposely concealed defect, should be branded on the left shoulder with the leter R. Horses rejected for being under age, in poor condition, or injured by transportation, &c., were to be lightly branded on the front part of the fore hoof with the letter R. A large number of other directions were given to inspectors, but these were the principal ones complained of. The claimant applied to have these rules modified or suspended in his case, as not having been promulgated when he made his contract; but his application was refused. He therefore threw up his contract, and did not purchase any horses; but alleged that he sustained damages by not being allowed to perform his contract untrammelled by the new regulations.

The Court of Claims found that the regulations materially changed and modified the contract, by throwing upon the claimant, in its performance, increased delay, greater expense, and largely augmented risk; and, therefore, they gave judgment in his favor for such damages as would make him whole, which they estimated at $9000. The United States appealed.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States:

Covenants which might be implied in a contract between individuals will not be in a contract made by the government, where the only express agreement is dependent on the fact of an appropriation.

But, independently of this, no particular rules of inspection were referred to or adopted in this contract, and the only question is were the rules actually prescribed unreasonably severe, reference being had to the fact that we were carrying on a mighty war, that the number of horses to be bought by the government was immense, and that the claimant was a public contractor; one of a class continually practicing frauds on the government. We think that they were not.

Messrs. M. H. Carpenter, H. E. Totten, and I. Harris, contra:

Governments are bound to perfect faith in their dealings, as much as are individuals; and, if possible, more so; for remedies against them are less complete than against individuals.

Now, we say, when the rules in force at the time that the contract was made did not require the horses to be impounded for twenty-four hours before any inspection began, and did not stipulate that horses which, in the opinion of any person appointed as inspector by the chief of the Cavalry Bureau, were offered with manifest intention to defraud, should be branded, that the government had not a right to require that they should be impounded twenty-four hours before the inspection began, and should be branded and so rendered utterly unsalable whenever such deputy inspector pleased to fancy a fraudulent purpose; or to say that he fancied it, or even without saying anything, to act as if he knew the fact. The government had the right to keep the horses any length of time for act of inspection; they had a right to make the inspection the most rigid possible, and to reject if dissatisfied. But they had no right, after the contract made without such a provision, to instruct their subordinates to punish even the fraudulent presentation of a horse by permanently mutilating and disfiguring him; or to debase the value of the claimant's property by branding it when it was rejected for common defects involving no fraud.

Mr. Justice BRADLEY delivered the opinion of the court.

title: United States v. Wormer


text: Talk:United States v. Wormer

title: Talk:United States v. Wormer


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

We think that the Court of Claims erred in its finding and judgment in this case. The government clearly had the right to prescribe regulations for the inspection of horses, and there was great need of strictness in this regard, for frauds were constantly perpetrated. We see nothing unreasonable in the regulations complained of. It is well known that horses may be prepared and fixed up to appear bright and smart for a few hours, and it was altogether reasonable that they should be placed in the government yard for the period required, and that no person interested in them should be permitted to manipulate them whilst under inspection. The branding was also a proper and necessary precaution to prevent the same horses being presented a second time after condemnation. The branding on the foot was of slight importance, and the brand on the shoulder was not to be applied except in cases of absolute fraud. A person guilty of fraud would have no right to complain of the regulation being carried into effect.

As the government had the right to prescribe all proper and reasonable regulations on the subject, and as the regulations prescribed do not seem to have been unreasonable, the claimant cannot complain. If he chose, under these circumstances, to fling up his contract, he must be content to suffer any incidental damage which he may have incurred in making preparations for its performance. It was a damage voluntarily sustained, and the maxim, volenti non fit injuria, applies to the case.

DECREE REVERSED, and the court below directed to

DISMISS THE PETITION.


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


text:
Low v. Austin

ERROR to the Supreme Court of the State of California.

The statutes of California, in force in 1868, provided that 'all property of every kind, name, and nature whatsoever within the State' (with certain exceptions), should be subject to taxation according to its value. In 1868, and for several years before, and at the time of commencing this action, Low and others were importing, shipping, and commission merchants in the city of San Francisco, California. In 1868 they received on consignment from parties in France, certain champagne wines upon which they paid the duties and charges of the custom-house. They then stored the wines in their warehouse in San Francisco, in the original cases in which the wines were imported, where they remained for sale. Whilst in this condition they were assessed as the property of the said Low and others, for State, city, and county taxes, under the general revenue law of California above mentioned. Low and the others refused to pay the tax, asserting that it was levied in contravention of that provision of the Constitution, which ordained that.

'No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports,' &c.

Upon the refusal, one Austin, at the time collector of taxes for the city and county of San Francisco, levied upon the cases of wine thus stored for the amount of the tax assessed, and was about to sell them, when Low and the others paid the amount, and the charges incurred, under protest. They then brought the present action in one of the District Courts of the State to recover back the money paid; there arguing that the illegality of the tax was settled by the case of Brown v. The State of Maryland, in which this court declared an act of the State of Maryland, requiring all persons who should sell imported goods by wholesale, bale, or package, to take out a license from the State, for which they were required to pay $50, to be in conflict with the provision of the Constitution of the United States above quoted;-this court there holding that the license was a tax upon the articles imported; that it interecepted the goods before they had become mingled with the mass of the property of the State, and, therefore, that it was a tax upon the goods as imports, and consequently within the constitutional inhibition.

The District Court gave judgment for the plaintiffs, holding that the law under which the tax was levied was void.

The collector, Austin, now took the case to the Supreme Court of California. The view of that court did not coincide with the view of the District Court. Referring to the case of Brown v. The State of Maryland, above quoted and relied on by the importers to show the illegality of the tax, the Supreme Court of California said:

'It is contended that the property taxed in this case had not become incorporated with the mass of the general wealth of the State, simply because it was still the property of the importer, in the original packages in which it was imported.

'We see nothing in this which even tends to show that the property had not become incorporated with the general wealth of the State. We see no reason why imported goods exposed in the store of a merchant for sale do not constitute a portion of the wealth of the State, as much as domestic goods similarly situated. Nor do we see the slightest difference whether the importer is also the merchant who sells, or whether the goods are in the original packages or not. In either case the goods are exposed for sale in the markets for the profit which may be realized from selling. They may be equally the basis of credit, and alike they require and receive the benefit of the police laws of the State, and upon every principle of equality should contribute to pay for their protection. Possibly the plaintiff, who is a commission merchant, has in his store champagne wines manufactured in Sonoma or Los Angeles, which he is offering to sell in the same market, in precisely similar packages. In what possible sense can one be said to constitute a portion of the wealth of the State in which the other does not? The object of the constitutional restriction is said to be to prevent the State from imposing a tax upon commerce, to discriminate against foreign goods. It certainly cannot be intended to discriminate against domestic productions by exempting foreign goods from its share of the cost of protecting it.

'A tax which is imposed alike upon all the property of the State cannot in any sense be considered a tax upon commerce. It has no tendency to discourage importations. Exemption from the tax might encourage importations, but certainly it was not the purpose of the restriction to compel the State to offer a bounty to foreign produce over domestic. The tax prohibited must be a tax upon the character of the goods as importations, rather than upon the goods themselves as property.'

The Supreme Court of California accordingly reversed the decree of the District Court, and to that decree of reversal the present writ was waken.

Messrs. W. A. Fisher, C. Marshall, and H. McAllister, for the plaintiffs in error.

Mr. J. Hamilton, Attorney-General of California, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Low v. Austin


text: Talk:Low v. Austin

title: Talk:Low v. Austin