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

Behan, the appellee and claimant, filed a petition in the court below, setting forth that on the twenty-sixth of December, 1879, one John Roy entered into a contract with C. W. Howell, major of engineers of the United States army, to make certain improvements in the harbor of New Orleans, (describing the same,) and that the claimant and two other persons named became bondsmen for the faithful performance of the work; that on February 10, 1881, the contract with Roy was annulled by the engineer office, and the bondsmen were notified that they had a right to continue the work under the contract if they desired to do so, and that the claimant complied with this suggestion and undertook the work; that he went to great expense in providing the requisite machinery, materials, and labor for fulfilling the contract, but that in September, 1881, it being found, by the report of a board of engineers, that the plan of improvement was a failure, without any fault of the claimant, the work was ordered to cease; that thereupon the claimant stopped all operations, and disposed of the machinery and materials on hand upon the best terms possible, and sent to the war department an account of his outlay and expenses, and the value of his own time, claiming as due to him, after all just credits and offsets, the sum of $36,347.94, for which sum he prayed judgment. The claimant afterwards filed an amended petition, in which the various transactions and his operations under the contract were set forth in greater detail, showing, among other things, that the amount of his expenses for machinery and tools, for materials, and for labor and operations carried on, after deducting the proceeds realized from the sale of the plant remaining when the work was suspended, amounted to the sum of $33,192.90. The petition further alleged that the claimant could have completed the work contemplated by the contract by a further expense of $10,000, and that the amount which would then have been due therefor would have been $52,000, leaving a profit to him of $8,807.10. The petition concluded as follows: 'Your petitioner therefore respectfully shows that his reasonable and necessary expenditures upon the work above described amounted to $33,195.92, which sum represents the losses actually sustained by petitioner by reason of the defendants' breach of the contract. And petitioner further sets forth that the reasonable and legitimate profits which he might have obtained but for the said breach of contract may be properly computed at $8,807.10, assuming $52,000 as the amount to be paid for the completed work. And petitioner further shows that he has not received one dollar from the defendants on account of said work, but that his claim and accompaning accounts, presented to the engineer department, have been transmitted to this court by the secretary of war. Your petitioner therefore alleges that he is entitled to receive from the United States the sum of forty-two thousand dollars ($42,000) over and above all just credits and offsets. Wherefore he prays judgment for that amount.'

The court of claims found the material facts to be substantially as stated in the petition. The contract of Roy is set forth in full in the findings, from which it appears that the contracting party was required to furnish and lay down an artificial covering of cane-mats over the sloping portion of the riverbed of the Mississippi in front of the third district of New Orleans, to extend outwards to a depth in the river not exceeding 100 feet, and to be paid therefor at the rate of 65 cents per square yard. The court finds that Roy prosecuted the work under the contract during the year 1880, but his progress not being satisfactory to the engineer officers, the contract was formally annualled and the bondsmen notified, as stated in the petition. In March, 1881, Behan, the claimant, gave notice to Maj. Howell that he would undertake the work, and at his request the major gave him a description of the work to be done, estimated as not exceeding 77,000 or 80,000 square yards, which, at the contract price, would amount to from $50,000 to $52,000.

The court further finds as follows: 'The contract was of such a character as to require extensive preparations and a large initial expenditure. The claimant made the necessary preparations for carrying on the work to completion, and in procuring boats, tools, materials, and apparatus for its prosecution. He engaged actively in carrying out the contract on his part, incurred large expenditure for labor and materials, and had for some time proceeded with the work when the undertaking was abandoned by the defendants and the work stopped, without fault of the claimant, as set forth in the following letters:' Then follows a copy of correspondence between the officers and the department of engineers, showing that a board of engineer officers was appointed to examine and report upon the plan of improvement under which the work of the claimant was being carried on, and that this board, on the twenty-third of September, 1881, reported their uanimous opinion that the object sought to be accomplished by the improvement had not been attained, and that under the then existing plan of operations it could not be attained. On the twenty-ninth of September, 1881, the claimant received notice to discontinue the work, which he did at once, and gave Maj. Howell notice to that effect, and called his attention to the exposed situation of the machinery, materials, and other property on hand, and requested instructions respecting the same. No instructions appear to have been given.

The court then finds as follows: 'The claimant thereupon closed up his work and sold the materials which he had on hand. Nothing has been paid to him for work, materials, or losses. The actual and reasonable expenditures by the claimant in the prosecution of his work, together with his unavoidable losses on the materials on hand at the time of the stoppage by the defendants, were equal to the full amount claimed therefor in his petition-$33,192.20. It does not appear from the evidence thereon on the one side and the other whether or not the claimant would have made any actual profit over and above expenditures, or would have incurred actual loss had he continued the work to the end and been paid the full contract price therefor.

'CONCLUSION OF LAW.

'Upon the foregoing findings of facts the court decides as a     conclusion of law that the claimant is entitled to recover      the sum of $33,192.20.'

The government has appealed from this decree, and complains of the rule of damages adopted by the court below. Counsel contend that, by making a claim for profits, the claimant asserts the existence of the contract as opposed to its rescission; and that in such case the rule of damages, as settled is Speed's Case, 8 Wall. 77, is 'the difference between the cost of doing the work and what claimants were to receive for it, making reasonable deduction for the less time engaged, and for release from the care, trouble, risk, and responsibility attending a full execution of the contract.' And when such a claim is made, they contend that the burden of proof is on the claimant to show what the profits would have been; and as the court of claims expressly finds that it does not appear from the evidence whether or not the claimant would have made any profits, or would have incurred loss, therefore the laimant was not entitled to judgment for any amount whatever.

The manner in which the subject was viewed by the court of claims is shown by the following extract from its opinion: 'Whatever rule may be adopted in calculating the damages to a contractor when, without his fault, the other party, during its progress, puts an end to the contract before completion, the object is to indemnify him for his losses sustained and his gains prevented by the action of the party in fault, viewing these elements with relation to each other. The profits and losses must be determined according to the circumstances of the case and the subject-matter of the contract. The reasonable expenditures already incurred, the unavoidable losses incident to stoppage, the progress attained, the unfinished part, and the probable cost of its completion, the whole contract price, and the estimated pecuniary result, favorable or unfavorable to him, had he been permitted or required to go on and complete his contract, may be taken in consideration. Sickels' Case, 1 Ct. Cl. 214; Speed's Case, 2 Ct. Cl. 429; affirmed on appeal, 8 Wall. 77, and 7 Ct. Cl. 93; Wilder's Case, 5 Ct. Cl. 468; Bulkley's Case, 7 Ct. Ci. 543, 19 Wall. 37, and 9 Ct. Cl. 81; Parish's Case, 100 U.S. 500; Field's Case, 16 Ct. Ci. ,434; Moore & Krone's Case, 17 Ct. Ci 17; Power's Case, decided at this term; Masterson v. City of Brooklyn, 7 Hill, 71. The amount of the claimant's unavoidable expenditures and losses already incurred are set forth in the findings. But we can give him nothing on account of prospective profits, because none have been proved. So, for the same reason, we can deduct nothing from his expenditures on account of prospective losses which he might have incurred had he not been relieved from completing his contract. This leaves his expenditures as the only damage proved to have resulted to him from the defendant's breach of contract, and are, therefore, the proper measure of damages under all the circumstances of the case.'

We think that these views, as applied to the case in hand, are substantially correct. The claimant has not received a dollar, either for what he did, or for what he expended, except the proceeds of the property which remained on his bands when the performance of the contract was stopped. Unless there is some artificial rule of law which has taken the place of natural justice in relation to the measure of damages, it would seem to be quite clear that the claimant ought at least to be made whole for his losses and expenditures. So far as appears, they were incurred in the fair endeavor to perform the contract which he assumed. If they were foolishly or unreasonably incurred, the government should have proven this fact. It will not be presumed. The court finds that his expenditures were reasonable. The claimant might also have recovered the profits of the contract if he had proven that any direct, as distinguished from speculative, profits would have been realized. But this he failed to do; and the court below very properly restricted its award of damages to his actual expenditures and losses.

The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the perfaormance of the contract, without the fault of the other party, who is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damage, namely,-First, what he has already expended towards performance, (less the value of materials on hand;) secondly, the profits that he would realize by performing the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. But when, in the language of Chief Justice NELSON, in the case of Masterson v. Mayor of Brooklyn, 7 Hill, 69, they are 'the direct and immediate fruits of the contract,' they are free from this objection; they are then 'part and parcel of the contract itself, entering into and constituting a portion of its very elements; something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation.' Still, in order to furnish a ground of recovery in damages, they must be proved. If not proved, or if they are of such remote and speculative character that they cannot be legally proved, the party is confined to his loss of actual outlay and expense. This loss, however, he is clearly entitled to recover in all cases, unless the other party, who has voluntarily stopped the performance of the contract, can show the contrary.

The rule, as stated in Speed's Case, is only one aspect of the general rule. It is the rule as applicable to a particular case. As before stated, the primary measure of damages is the amount of the party's loss; and this loss, as we have seen, may consist of two heads or classes of damage-actual outlay and anticipated profits. But failure to prove profits will not prevent the party from recovering his losses for actual outlay and expenditure. If he goes also for profits, then the rule applies as laid down in Speed's Case, and his profits will be measured by 'the difference between the cost of doing the work and what he was to receive for it,' etc. The claimant was not bound to go for profits, even though he counted for them in his petition. He might stop upon a showing of losses. The two heads of damage are distinct, though closely related. When profits are sought a recovery for outlay is included and something more. That something more is the profits. If the outlay equals or exceeds the amount to be received of course there can be no profits. When a party injured by the stoppage of a contract elects to rescind it, then, it is true, he cannot recover any damages for a breach of the contract, either for outlay or for loss of profits; he recovers the value of his services actually performed as upon a quantum meruit. There is then no question of losses or profits. But when he elects to go for damages for the breach of the contract, the first and most obvious damage to be shown is the amount which he has been induced to expend on the faith of the contract, including a fair allowance for his own time and services. If he chooses to go further, and claims for the loss of anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed. It does not lie, however, in the mouth of the party, who has voluntarily and wrongfully put an end to the contract, to say that the party injured has not been damaged at least to the amount of what he has been induced fairly and in good faith to lay out and expend, (including his own services,) after making allowance for the value of materials on hand; at least it does not lie in the mouth of the party in fault to say this, unless he can show that the expenses of the party injured have been extravagant, and unnecessary for the purpose of carrying out the contract.

It is unnecessary to review the authorities on this subject. Some of them are referred to in the extract made from the opinion of the court below; others may be found referred to in Sedgwick on the Measure of Damages, and in Smith's Leading Cases, vol. 2, p. 36, etc., (notes to Cutter v. Powell;) Add. Cont. §§ 881, 897. The cases usually referred to, and which, with many others, have been carefully examined, are, Planche v. Colburn, 5 Car. & P. 58; S.C.. 8 Bing. 14; Masterson v. Mayor of Brooklyn, 7 Hill, (N. Y.) 61; Goodman v. Pocock, 15 Q. B. 576; Hadley v. Baxendale, 9 Ex. 341; Fletcher v. Tayleur, 17 C. B. 21; Smeed v. Food, 1 El. & El. 602; Inchbald v. Western Coffee Co. 17 C. B. (N. S.) 733; Griffin v. Colver, 16 N. Y. 489; and the case of U.S. v. Speed, supra.

It is to be observed that when it is said in some of the books that where one party puts an end to the contract the other party cannot sue on the contract, but must sue for the work actually done under it, as upon a quantum meruit; this only means that he cannot sue the party in fault upon the stipulations contained in the contract, for he himself has been prevented from performing his own part of the contract upon which the stipulations depend. But, surely, the willful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained. The distinction between those claims under a contract which result from a performance of it on the part of the claimant, and those claims under it which result from being prevented by the other party from performing it, has not always been attended to. The party who voluntarily and wrongfully puts an end to a contract, and prevents the other party from performing it, is estopped from denying that the injured party has not been damaged to the extent of his actual loss and outlay fairly incurred.

The particular form of the petition in this case ought not to preclude the claimant from recovering what was fairly shown by the evidence to be the damage sustained by him. Though it is true that he does pray judgment for damages arising from loss of profits, yet he also prays judgment for the amount of his outlay and expenses, less the amount realized from the sale of materials on hand. The claim for profits, if not sustained by proof, ought not to preclude a recovery of the claim for losses sustained by outlay and expenses. In a proceeding like the present, in which the claimant sets forth by way of petition a plain statement of the facts without technical formality, and prays relief either in a general manner, or in an alternative or comulative form, the court ought not to hold the claimant to strict technical rules of pleading, but should give to his statement a liberal interpretation, and afford him such relief as he may show himself substantially entitled to if within the fair scope of the claim as exhibited by the facts set forth in the petition.

We think that the judgment of the court of claims was right, and it is affirmed.


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

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


text:
Spring Valley Water-Works v. Schottler

''Chas. N. Fox, Francis G. Newlands, Geo. F. Edmunds, and Richard Crowley'', for plaintiffs in error.

A. L. Rhodes and Alfred Barston, for defendant in error.

WAITE, C. J.

title: Spring Valley Water-Works v. Schottler


text: Talk:Spring Valley Water-Works v. Schottler


text:
Spring Valley Water-Works v. Schottler/Opinion of the Court

Article 4, § 31, of the constitution of California, adopted in 1849, is as follows: 'Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed.'

Acts were passed by the legislature under this authority on the fourteenth of April, 1853, and the thirtieth of April, 1855, providing for the formation of corporations for certain purposes, and on the twenty-second of April, 1858, these acts were extended so as to include the formation of corporations for the purpose of supplying cities, counties, and towns with water. Under this extension water companies were empowered to acquire lands and waters for their works by purchase and condemnation, and, subject to the reasonable direction of the public authorities, to use streets, ways, alleys, and public roads for laying their pipes, but it was expressly provided, by an amendment enacted in 1861, 'that all canals, reservoirs, ditches, pipes, aqueducts, and all conduits * *  * shall be used exclusively for the purpose of supplying any city or county, or any cities or towns, in this state, or the inhabitants thereof, with pure, fresh water.'

Section 4 is as follows: 'Sec. 4. All corporations formed under the provisions of this act, or claiming any of the privileges of the same, shall furnish pure, fresh water to the inhabitants of such city and county, or city or town, for family uses, so long as the supply permits, at reasonable rates, and without distinction of persons, upon proper demand therefor, and shall furnish water, to the extent of their means, to such city and county, or city or town, in case of fire or other great necessity, free of charge. And the rates to be charged for water shall be determined by a board of commissioners, to be selected as follows: Two by such city and county, or city or town, authorities, and two by the water company; and in case that four cannot agree to the valuation, then, in that case, the four shall choose a fifth person, and he shall become a member of said board; if the four commissioners cannot agree upon a fifth, then the sheriff of the county shall appoint such fifth person. The decision of a majority of said board shall determine the rates to be charged for water for one year, and until new rates shall be established. The board of supervisors, or the proper city or town authorities, may prescribe such other proper rules relating to the delivery of water, not inconsistent with this act and the laws and constitution of this state.'

The Spring Valley Water-works Company was formed under this act on the nineteenth of June, 1858, and since that time has expended a very large amount of money in the erection of extensive and substantial works for the supply of the city and county of San Francisco with water. In January, 1878, the board of supervisors of the city and county appointed Isaac B. Friedlander and H. B. Williams, and the company appointed W. F. Babcock and Charles Webb Howard, and these four afterwards appointed Jerome Lincoln, to constitute a board of commissioners to determine, under the provisions of section 4, the rates to be charged by the company for water. This board met and fixed a tariff of rates to go into effect on the first of June 1878. In July of the same year, Friedlander, one of the commissioners appointed by the supervisors, died. By his death a vacancy was created in the board which has never been filled.

In 1879 the people of California adopted a new constitution, which went into effect on the first of January, 1880. Article 14, §§ 1, 2, of this constitution, are as follows:

'ARTICLE 14.

'Water and Water Rights.

'Section 1. The uses of all water now appropriated, or that     may hereafter be appropriated, for sale, rental, or      distribution, is hereby declared to be a public use, and      subject to the regulation and control of the state in the      manner to be prescribed by law: provided, that the rates or      compensation to be collected by any person, company, or      corporation in this state for the use of water supplied to      any city and county, or city or town, or the inhabitants      thereof, shall be fixed annually by the board of supervisors,      or city and county, or city or town council, or other      governing body of such city and county, or city or town, by      ordinance or otherwise, in the manner that other ordinances      or legislative acts or resolutions are passed by such body,      and shall continue in force for one year and no longer. Such     ordinances or resolutions shall be passed in the month of      February of each year, and take effect on the first day of      July thereafter. Any board or body failing to pass the     necessary ordinances or resolutions fixing water rates where      necessary, within such time, shall be subject to peremptory      process to compel action at the suit of any party interested,      and shall be liable to such further processes and penalties      as the legislature may prescribe. Any person, company, or     corporation collecting water rates in any city and county, or      city or town, in this state, otherwise than as so established shall forfeit the      franchises and water works of such person, company, or      corporation to the city and county, or city or town where the      same are collected for the public use.

'Sec. 2. The right to collect rates or compensation for the     use of water supplied to any county, city and county or town,      or the inhabitants thereof, is a franchise, and cannot be      exercised except by authority of and in the manner prescribed      by law.'

Under this provision of the constitution, and the legislation based thereon, the board of supervisors claim the right and power to fix the rates to be charged by the company for water, and refuse to appoint a member to fill the vacancy in the board of commissioners occasioned by the death of the former incumbent. This suit was begun in the supreme court of the state for a writ of mandamus, requiring the board of supervisors to take action in the matter and fill the vacancy. The court, on final hearing, refused the writ and dismissed the petition. This writ of error was brought by the company to review that judgment.

The general question involved in this case is whether water companies in California, formed under the act of 1858, before the adoption of the constitution of 1879, have a right which the state is prohibited by the constitution of the United States from impairing or taking away, to charge their customers such prices for water as may from time to time be fixed by a commission made up of two persons selected by the company, two by the public authorities of the locality, and, if need be, a fifth selected by the other four, or by the sheriff of the county. The Spring Valley Company claims no rights of this character that may not also be claimed by every other company formed under the same act. That the companies must sell at reasonable prices all the water they are able to furnish consumers, and that the prices fixed for the time being by the honest judgment of such a commission as was specially provided for in the act, must be deemed reasonable, both by the company and the public, is not denied. The dispute is as to the power of the state, under the prohibitions of the constitution of the United States, to substitute for this commission another, selected without the co-operation of the company, or some other tribunal of a different character, like the municipal authorities of the locality. The Spring Valley Company claims that it has, under its charter, a right to the maintenance of the commission which was created by the requisite appointments in 1878, and the object of this suit is to compel the board of supervisors to perpetuate that commission by filling the vacancy that exists in its membership. So that the whole controversy here is as to the right of water companies that availed themselves of the privileges of the act of 1858 to secure a virtual monopoly of trade in water at a particular place, to demand the appointment of the commission provided for in that act, notwithstanding the constitution of 1879 and the legislation under it.

The Spring Valley Company is an artificial being, created by or under the authority of the legislature of California. The people of the state, when they first established their government, provided in express terms that corporations, other than for municipal purposes, should not be formed except under general laws, subject at all times to alteration or repeal. The reservation of power to alter or repeal the charters of corporations was not new, for almost immediately after the judgment of this court in the Dartmouth College Case, (Dartmouth College v. Woodward, 4 Wheat. 518,) the states, many of them, in granting charters, acted on the suggestion of Mr. Justice STORY in his concurring opinion (page 712) and inserted provisions by which such authority was expressly retained. Even before this decision it was intimated by the supreme judicial court of Massachusetts, in Wales v. Stetson, 2 Mass. 143, that such a reservation would save to the state its power of control. In California the constitution put this reservation into every charter, and consequently this company was from the moment of its creation subject to the legislative power of alteration, and, if deemed expedient, of absolute extinguishment as a corporate body.

Water for domestic uses was difficult to be got in some parts of the state. Large amounts of money were needed to secure a sufficient supply for the inhabitants in many localities, and as a means of combining capital for such purposes the act of 1858 was passed. Other statutes had been enacted before to effect the same object, but it is said they were not such as a company with capital enough to supply San Francisco was willing to accept. The act of 1858 was thought sufficiently favorable, and the Spring Valley Company, after organizing under it, expended a large amount of money to provide the means of supplying the territory on which San Francisco is built, and make it possible to support a great population there. All this was done in the face of the limitations of the constitution on the power of the legislature to create a private corporation and put it beyond the reach of legislative control, not only as to its continued existence, but as to its privileges and franchises. One of the obligations the company assumed was to sell water at reasonable prices, and the law provided for a special commission to determine what should be deemed reasonable both by the consumers and the company, but there is nowhere to be found any evidence of even a willingness to contract away the power of the legislature to prescribe another mode of settling the same question if it should be considered desirable. In the Sinking Fund Cases, 99 U.S. 721, it was said that whatever rules for the government of the affairs of a corporation might have been put into the charter when granted could afterwards be established by the legislature under its reserved power of amendment. Long before the constitution of 1879 was adopted in California, statutes had been passed in many of the states requiring water companies, gas companies, and other companies of like character, to supply their customers at prices to be fixed by the municipal authorities of the locality; and, as an independent proposition, we see no reason why such a regulation is not within the scope of legislative power, unless prohibited by constitutional limitations or valid contract obligations. Whether expedient or not is a question for the legislature, not the courts.

It is said, however, that appointing municipal officers to fix prices between the seller and the buyers is in effect appointing the buyers themselves, since the buyers elect the officers, and that this is a violation of the principle that no man shall be a judge in his own case. But the officers here selected are the governing board of the municipality, and they are to act in their official capacity as such a board when performing the duty which has been imposed upon them. Their general duty is, within the limit of their powers, to administer the local government, and in so doing to provide that all shall so conduct themselves, and so use their own property, as not unnecessarily to injure others. They are elected by the people for that purpose, and whatever is within the just scope of the purpose may properly be intrusted to them at the discretion of the legislature. That it is within the power of the government to regulate the prices at which water shall be sold, by one who enjoys a virtual monopoly of the sale, we do not doubt. That question is settled by what was decided on full consideration in Munn v. Illinois, 94 U.S. 113. As was said in that case, such regulations do not deprive a person of his property without due process of law. What may be done if the municipal authorities do not exercise an honest judgment, or if they fix upon a price which is manifestly unreasonable, need not now be considered, for that proposition is not presented by this record. The objection here is not to any improper prices fixed by the officers, but to their power to fix prices at all. By the constitution and the legislation under it, the municipal authorities have been created a special tribunal to determine what, as between the public and the company, shall be deemed a reasonable price during a certain limited period. Like every other tribunal established by the legislature for such a purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their official determination. It is not to be presumed that they will act otherwise than according to this rule. And here, again, it is to be kept in mind that the question before us is not as to the penalties to be inflicted on the company for a failure to sell at the prices fixed, but as to the power to fix the price; not whether the company shall forfeit its property and franchises to the city and county if it fails to meet the requirements of the constitution, but whether the prices it shall charge may be established in the way provided for in that instrument. It will be time enough to consider the consequences of the omissions of the company when a case involving such questions shall be presented.

But it is argued that as the laws in force before 1858, for the formation of water companies, which provided for fixing the rates by the municipal authorities, were not accepted by the Spring Valley Company, and that of 1858, without such a provision, was, it is to be inferred, that the state contracted with this company not to subject it to the judgment of such authorities in a matter so vital to its interests. If the question were one of construction only, this argument might have force, but the dispute now is as to legislative power, not legislative action. The constitution of California, adopted in 1849, prohibited one legislature from bargaining away the power of suceeding legislatures to control the administration of the affairs of a private corporation formed under the laws of the state. Of this legislative disability the Spring Valley Company had notice when it accepted the privileges of the act of 1858, and it must be presumed to have built its works and expended its moneys in the hope that neither a succeeding legislature, nor the people in their collective capacity when framing a constitution, would ever deem it expedient to return to the old mode of fixing rates, rather than on any want of power to do so, if found desirable. The question here is not between the buyer and the seller as to prices, but between the state and one of its corporations as to what corporate privileges have been granted. The power to amend corporate charters is, no doubt, one that bad men may abuse, but, when the amendments are within the scope of the power, the courts cannot interfere with the discretion of the legislatures that have been invested with authority to make them. The organization of the Spring Valley Company was not a business arrangement between the state and the company as contracting parties, but the creation of a new corporation to do business within the state and to be governed as natural persons or other corporations were or might be. Neither are the chartered rights acquired by the company under the law to be looked upon as contracts with the city and county of San Francisco. The corporation was created by the state. All its powers came from the state, and none from the city or county. As a corporation it can contract with the city and county in any way allowed by law, but its powers and obligations, except those which grow out of contracts lawfully made, depend alone on the statute under which it was organized, and such alterations and amendments thereof as may, from time to time, be made by proper authority. The provision for fixing rates cannot be separated from the remainder of the statute by calling it a contract. It was a condition attached to the franchise conferred on any corporation formed under the statute and indissolubly connected with the reserved power of alteration and repeal.

It follows that the court below was right in refusing to award the writ of mandamus which was prayed, and its judgment to that effect is affirmed.


text: Talk:Spring Valley Water-Works v. Schottler/Opinion of the Court


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Page:Babyhood of Wild Beasts.djvu/42

32 scolded him and it was evident by his manner that she told him it wasn't good for him.

The Orang baby is big-headed, innocent-eyed and gentle in manner. They crave affection and suffer without it. The more attention and petting they receive, the better they thrive. Love is the eternal supply needed to level all their sorrows as well as ours. Orangs like human beings. They cling to those they love and are morose and melancholy when away from the object of their affections.

The Orang-Utan comes from Borneo and Sumatra. Its name is pure Malay and means "jungle man." It is appropriate, for the creatures live in the trees and enjoy life to its fullest possible extent. Old Orang is easily recognized by his brown skin, red hair and little ears. He is long-armed, short-legged and pot-bellied, and looks like a burlesque of an Irish comedian.

He is full of fun as a "barrel of monkeys." I have observed the antics of these animals and nearly all of them are supported by good sound sense.

One day I watched "Baldy," a very clever

title: Page:Babyhood of Wild Beasts.djvu/42


text:
County of Howard v. Paddock

''Jno. D. Stevenson'', for plaintiff in error.

''Jno. H. Overall'', for defendant in error.

WAITE, C. J.

title: County of Howard v. Paddock


text: Talk:County of Howard v. Paddock

title: Talk:County of Howard v. Paddock


text:
County of Howard v. Paddock/Opinion of the Court

It was conceded on the argument of this case that under the original charter of the Louisiana & Missouri River Railroad Company, granted in 1859, Howard county had authority to subscribe to the capital stock of the company without a vote of the people, and that this authority was not taken away by the constitution of 1865. The claim is, however, that the amending act of 1868 so changed the original charter as to subject it to the prohibitions of the constitution as to municipal subscriptions made after that act was passed and accepted by the company. As to this it is sufficient to say that in County of Callaway v. Foster, 93 U.S. 567, it was decided otherwise. By the act of 1868 power was given to build a branch through Callaway county, and to extend the road across the Missouri river, but no change was made in the direction of the main line. That was left to the discretion of the directors, who retained their original authority to build through Howard county on the way to Missouri. The original authority of Howard county to subscribe to the stock was consequently unimpaired. The fact that the branch through Callaway county was located, and the subscription of that county received, before Howard county made its subscription, is unimportant in this case, because the line through Callaway county was located as a branch, while that through Howard county was designated in express terms as the main line. If either part of the road was built under new authority conferred on the company by the act of 1868, it certainly was not the main line as located. The power to build the main line was clearly conferred by the act of 1859.

It follows that the judgment of the circuit court was right, and it is consequently affirmed.


text: Talk:County of Howard v. Paddock/Opinion of the Court


text:
Cota

Asst. Atty. Gen. Maury, for respondent.

No brief filed for petitioner.

WAITE, C. J.

title: Cota


text: Talk:Cota

title: Talk:Cota


text:
Cota/Opinion of the Court

It was decided at the last term in Ex parte Tom Tong, 108 U.S. [S.C.. 2 SUP. CT. REP. 871,] that this court could not take jurisdiction of a certificate of division in opinion between the judges of a circuit court in proceedings under a writ of habeas corpus until final judgment has been rendered in accordance with the opinion of the presiding justice or judge. This is such a case, and it is consequently remanded to the circuit court for further proceedings according to law.

title: Cota/Opinion of the Court


text: Talk:Cota/Opinion of the Court

title: Talk:Cota/Opinion of the Court


text:
Webster v. Buffalo Insurance Company

''Jeff. Chandler'', for plaintiff in error.

O. B. Sansum, for defendant in error.

WAITE, C. J.

title: Webster v. Buffalo Insurance Company


text: Talk:Webster v. Buffalo Insurance Company


text:
Webster v. Buffalo Insurance Company/Opinion of the Court

This is a suit upon an open-cargo policy of insurance issued by the Buffalo Insurance Company to the firm of Webster, Heinicke & Coglin 'on shipments of merchandise to them at St. Louis, * *  * they stipulating to report all such shipments and modes of transit to this office as soon as advised thereof.' The aggregate amount of the company's liabilities under the policy was in no case to exceed $5,000 on one vessel at any one time, unless special arrangements were mutually agreed upon for amounts exceeding that sum. One of the conditions of the policy was that, 'in case of total loss, the adjustments of the same shall be made upon the valuations specified in the policy, if any; but in the absence of a valuation, then upon the invoice price, without reference to the market value of the article in sured.' The allegation of Webster & Coglin in their pleading is that, 'on the twenty-sixth day of February, 1879, they notified defendant at its office, in said city of St. Louis, of the shipment to them at the said city of St. Louis from the port of Liverpool, England, on some steam-boat whose name was then unknown to said firm, of the merchandise mentioned in the plaintiffs' petition, and requested defendant to enter said shipment on defendant's books at the valuation of four thousand dollars, and then and there delivered to defendant a written and printed application for entering said merchandise under said policy upon a blank form furnished by defendant therefor. Whereupon the defendant, by and through their agents, * *  * accepted said notice, and then and there agreed to accept said risk for said firm under said policy of insurance *  *  * and to cover the merchandise mentioned in plaintiffs' petition under said policy in the sum of four thousand dollars.' The goods were lost on the voyage, and this suit was begun on the first of May, 1879. The further allegation is that the goods were worth $5,010, and a judgment is asked for that amount. The defense is that the policy did not include the ocean risk, and was limited to 'river cargo' and nothing else.

On the twenty-third of April, 1880, the following stipulation was filed in the cause: 'The plaintiffs and defendants agree that the value of the merchandise described in the plaintiffs' said petition is the sum of $4,800, and that upon the trial of this cause neither party shall give any evidence as to said value. Also, that if the court shall be of opinion that the plaintiffs are entitled to judgment, the judgment shall be entered for the sum of $5,010. But this agreement is expressly limited to the single fact of value, and is not to be taken as admitting any right of the plaintiffs to recover in this case. It being well understood by the plaintiffs that as to all facts necessary to be proved by the plaintiffs to entitle them to judgment they must make legal proof thereof, excepting only the value of the merchandise aforesaid.'

Judgment was given for the company on facts found, and to reverse that judgment this writ of error was brought.

It was decided in Lee v. Watson, 1 Wall. 339, that 'in an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed, and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment at its conclusion, must be considered in determining whether this court can take jurisdiction on a writ of error sued out by the plaintiff.' Such is now the established rule. Schacker v. ''Hartford Fire Ins. Co. 93 U.S. 241; Gray v. Blanchard, 97 U.S. 565; Tintsman v. Nat. Bank, 100 U.S. 6; Banking Ass'n v. Ins. Ass'n, 102 U.S. 121; Hilton v. Dickinson'', 108 U.S.-, [2 SUP.CT. REP. 424.] In the present case, although the value of the goods is alleged to have been $5,010, and a judgment is asked for that amount, it appears distinctly, both in the petition of the plaintiffs and their reply to the answer of the defendant, that the insurance was for $4,000 and no more. The loss occurred at some time after February 26, 1879, and the judgment was rendered January 4, 1881, so that if the plaintiffs had recovered according to their claim as stated in the pleadings, their judgment, after interest was added to the amount of the insurance, would have been less than $5,000. Although it was agreed that the goods were actually worth more than $4,000 and the loss was total, it was one of the conditions of the insurance that the adjustment should be made upon the valuation specified in the policy. The actual value of the goods at the time of the insurance or of the loss is therefore unimportant.

We cannot accept the stipulation of the parties, that judgment might be entered for $5,010, if the court should be of opinion that the plaintiffs were entitled to recover at all, as giving us jurisdiction. The dispute, as developed in the pleadings, was as to the liability of the company upon a contract of insurance for $4,000, and no more. Arrangements between parties contradictory to their pleadings, and so evidently made for the purpose of enlarging the case sufficiently to bring it within the jurisdiction of this court, cannot be recognized here.

It follows that the writ should be dismissed for want of jurisdiction; and it is so ordered. Dismissed.


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


text:
Cable v. Ellis

''Chas. M. Osborne'', for appellant.

''Geo. W. Spahr'', for appellee.

WAITE, C. J.

title: Cable v. Ellis


text: Talk:Cable v. Ellis

title: Talk:Cable v. Ellis


text:
Cable v. Ellis/Opinion of the Court

This is an appeal from an order of the circuit court remanding a suit removed from a state coutr. From the confused mass of pleadings, exhibits, proofs, orders, and decrees, making a volume of more than 500 printed pages, sent here as a transcript of the record below, and the reports of the decisions of the supreme court of Illinois in Sumner v. Waugh, 56 Ill, 531; Cable v. Ellis, 86 Ill. 525; and Ellis v. Sisson, 96 Ill. 105, referred to on both sides as part of the case, we have, with the help of the briefs of counsel, extracted the following facts which, in our opinion, are decisive of the present controversy:

On the third of June, 1858, Thomas B. Ellis bought of John M. Waugh and Henry B. Ellis certain lands and mill property in Illinois. Waugh and Henry B. Ellis were at the time indebted to Thomas B. Eills to the amount of $8,000, or thereabouts, and the mill property was incumbered by a mortgage to Benjamin T. Sisson for $9,280. Thomas B. Ellis paid for the property by releasing the debt due himself, assuming the mortgage to Sisson, and giving his own notes to Waugh and Henry B. Ellis, secured by mortgage on the property for $14,984.54. On the thirtieth of September, 1858, Thomas B. Ellis entered into a written contract with Sisson and John B. Rathbun for the sale, release, and conveyance of 'all his paid-in interest' in the property, for which the purchasers were to pay as in the agreement specified, including with the rest such a sum to Thomas B. Ellis, personally, as from authenticated bills it should appear he had paid in.' To secure the payment of such sum as should be found to be due him, a mortgage was to be given on the property. Under this contract, possession was delivered to the purchasers. Disputes having arisen as to the amount of the 'authenticated bills,' Thomas B. Ellis, on the twenty-first of March, 1861, filed a bill in chancery in the Mercer county circuit court, to enforce a specific performance of the contract. To this bill Waugh, Sisson, and Rathbun were made defendants, and the prayer was that the mortgages of Waugh and Henry B. Ellis to Sisson, and Thomas B. Ellis to Waugh and Henry B. Ellis might be canceled, and that the amount of purchase money due thomas b. ellis from Sisson and Rathbun might be ascertained and adjudged to be the paramount lien on the property in the hands of the purchasers. As to Waugh, the averments were, in substance, that he was 'in fact and in equity' a purchaser of the property with Sisson and Rathbun, and that by the terms of the contract, the notes and mortgage of Thomas B. Ellis, then held by Waugh, and the mortgage to Sisson, were to be canceled, and a first lien on the property given to Thomas B. Ellis as security for the purchase money to be paid to him. In 1862 Sisson assigned his notes and mortgages to Austin, Sumner & Co., and in 1864 they began a suit for foreclosure in the Mercer county circuit court, making Waugh, Sisson, Thomas B. Ellis, and Henry B. Ellis defendants. Thomas B. Ellis answered, and also filed a cross-bill, in which he set up his sale of the property and a cancellation under that sale of the mortgage to Sisson before the transfer to Austin, Sumner & Co. The circuit court decreed against Austin, Sumner & Co., and dismissed their bill, but upon appeal to the supreme court, the decree dismissing the bill was reversed in 1869, but the lien of Austin, Sumner & Co. was postponed to that of Thomas B. Ellis for the purchase money under his contract of sale.

As to the mortgage of Thomas B. Ellis to Waugh and Henry B. Ellis, the language of the opinion is as follows: 'This contract postponed, also, the mortgage in question to the mortgage executed by T. B. Ellis to Waugh and H. B. Ellis. They were not parties to it, and could not be bound by its provisions. Although the contract seems to contemplate that their mortgage was also to be canceled, it does not appear how or in what mode, and not being parties to the agreement, they cannot be affected by it. It is, therefore, the first lien on the property, and must be so held. The whole case, somewhat complicated, it is true, shows a contest between equities. That the complainants have some which should have been regarded by the circuit court and decreed to them, we cannot doubt. The bill should not, therefore, have been dismissed. In order that the equities of the complainants may be enforced, it seems necessary that there should be a foreclosure of the Waugh and Ellis mortgage. * *  * The pleadings are not framed with a view to any relief as to the Waugh and Ellis mortgage, or as to any substitution of the complainants to the rights of Waugh in the Waugh and Ellis mortgage. Leave will be given to amend the pleadings as the parties may be advised, and to take further proofs.' Sumner v. Waugh, 56 Ill. 541, 542. The case was then remanded for further proceedings in conformity with the opinion, in which suggestions were made as to what should be done if the Waugh and Ellis mortgage should be found to be a valid and subsisting lien. After this decision Philander L. Cable took from Waugh an assignment of the note and mortgage of Thomas B. Ellis to Waugh and Henry B. Ellis, and in 1872 began a suit in the Mercer county circuit court for a foreclosure. To this suit Thomas B. Ellis, Sisson, and Austin, Sumner & Co. were made defendants. Thomas B. Ellis answered, setting up his contract of sale, and claiming a cancellation of the mortgage thereby.

On the sixth of May, 1873, an order was entered in the circuit court consolidating the three suits, to-wit, that of Thomas B. Ellis, that of Austin, Sumner & Co., and that of Philander L. Cable. From that time these three suits were proceeded in as one and involving the same general matter. On the tenth of June, 1875, the circuit court entered a decree establishing the claim of Thomas B. Ellis as against Cable. From this decree Cable appealed to the supreme court, where, in 1877, after holding that the Sisson mortgage could not be enforced as against Thomas B. Ellis, it was said in the opinion delivered: 'It was doubtless the intention of the contract of September 30th that the latter mortgage also, [that to Waugn and Ellis,] as well as the former, [that of Sisson,] should be canceled, so as to give T. B. Ellis a superior lien upon the property for the security of the payment of his paid-in interest, and for the carrying out of such intention, and being impressed with the justice of the claim of T. B. Ellis that he should have such security, we have anxlously sought for some satisfactory ground upon which we might rest the support of such a claim, but we have not been able to discover any. * *  * The written contract of September 30, 1958, was not signed by Waugh, and we cannot hold him as bound by that contract to discharge and release his mortgage, although we may strongly suspect there was a secret understanding to that effect.' Cable v. Ellis, 86 Ill. 539, 540. The result was a decision that the Waugh and Ellis mortgage should be first paid, and an order was entered remanding the suit to the circuit court for further proceedings in accordance with the opinion.

The case was redocketed in the circuit court at or before the May term, 1878, and on the twenty-fifth of November, Thomas B. Ellis, by leave of the court, filed an amended bill, in which it was averred, in substance, that while Waugh did not sign the contract of purchase by Sisson and Rathbun, he did, in fact, agree with Ellis at the time that if the sale was made on the terms proposed, he would postpone his mortgage on the property to the lien of Ellis for the purchase money and release Ellis from the payment of the notes. Answers were filed and new testimony taken. Upon the hearing in the circuit court the lien of Cable, in preference to that of Thomas B. Ellis, was established, tablished, and Ellis appealed. In 1880 the supreme court reversed the decree of the circuit court, and in the opinion, when speaking of the former decision in the case, it was said: 'There was no proof of such a joint written contract, or of such a joint contract by Waugh, Sisson, and Rathbun as alleged. The allegations and proofs did not agree. The amendment which has been made to the bill of Ellis, since the case was remanded, removes the difficulty which before existed. It sets up a separate verbal agreement on the part of Waugh to release the mortgage.' Then, after an examination of the testimony, the opinion proceeds: 'We are satisfied, from the evidence, that outside of this written agreement there was a verbal agreement between Waugh and Ellis to the purport that if Ellis would sell out to Sisson and Rathbun, he, Waugh, would accept such sale in satisfaction of the debt of Ellis to Waugh and H. B. Ellis. We think that by virtue of this agreement, and the transfer of the property, which was made by T. B. Ellis, and the full enjoyment ever since by Sisson, Rathbun, and Waugh among them, the notes and mortgage to Waugh and H. B. Ellis were satisfied; and as those to Sisson are also satisfied, that T. B. Ellis is entitled to the first lien on the property for his paid-in interest.' Cable thereupon filed a petition for rehearing, and from the opinion it appears that one of the grounds relied on was that the court below had no right to allow the amendment of the bill after the decision on the former appeal, by setting up in substance that the agreement of Waugh was by parol instead of in writing, as was originally alleged, but this petition was overruled and the case remanded to the circuit court for further proceedings in accordance with the opinion. Ellis v. Sisson, 96 Ill. 114, 119, 122. When the case got back to the circuit court, on the tenth of February, 1881, a receiver of the property was appointed on the application of Thomas B. Ellis, and against the objections of Cable.

During the year 1876, while the several suits were pending, Philander L. Cable caused a small part of the property to be laid off into lots, one of which went into the possession of Hiram Cable. On the fourteenth of May, 1881, after the receiver was appointed, Hiram Cable filed in the circuit court his petition of intervention in the cause, on the ground that he was 'pecuniarly interested in the subject-matter of the litigation, * *  * and that the orders and decrees that may be entered concerning the same may very materially affect him pecuniarily and conclude him with respect to his rights in the premises.' He then states in substance that 'on or about the ___ day of December, 1876,' Philander L. Cable was in the actual and exclusive possession of part of the premises described in the pleadings, and represented that he had bought the Waugh and Ellis mortgage; that the mortgage had been declared by the supreme court to be a first lien on the property; that in a short time there would be a final and conclusive decree for a sale of the property; that he should buy the property at the sale; and that in that way and others he would acquire an indefeasible title in the course of two or three years at the most.' Relying on these representations, Hiram Cable, Cable to purchase one of the lots that 1876,' orally agreed with Philander Calble to purchase one oof the lots that had been laid out, and to pay the reasonable and fair value thereof when a title was made. Under this agreement, with the leave of Philander, he went into the possession of the lot, relying on 'the said decision and determination of the said supreme court, and then being fully advised by the pleadings and proceedings herein of the extent and character of the claim of the said Thomas B. Ellis in and to said premises, and fully believing the said claim of the said Ellis was not other or different than he had himself stated the same in his pleadings, and that he would forever thereafter be estopped in equity and right, as against your petitioner or the said Cable, to assert and maintain that the same was other or different than as stated in his said pleadings herein, your petitioner did enter upon and take possession of said lot and parcel of said premises, and has ever since remained in possession of the same.' After entering into possession, and while the rights of the parties remained the same, he erected on the property permanent and lasting improvements of the value of $1,800. He then charges that long after the improvements were made it was adjudged and determined by said supreme court, 'upon and by virtue of a new and distinct claim (not germane to or consistent with his original claim in the premises) made and asserted by said Ellis, in and by an amendment to his pleadings, long since said improvements were so made, * *  * that the said mortgage so purchased by said Cable from said Waugh was not a first lien upon said premises, but that the same was in equity *  *  * satisfied and discharged,' and the lien of Ellis was established for more than the property and all the improvements thereon were worth. 'But your petitioner says that the said Ellis ought not to be allowed in a court of equity to insist and maintain, as against your petitioner, such a new claim, so made by his amendment aforesaid, but that in equity and good conscience he ought to be stayed and estopped from so interposing the same. That the said Cable has in all things acted in good faith and fairly with your petitioner, and has strenuously endeavored to maintain his claimed rights in the premises, but that, as your petitioner believes, in case such premises shall be sold in behalf of the said claim of the said Ellis, without the decree and direction of this court that the value of said improvements shall be first paid to your petitioner out of the proceeds of such sale, your petitioner will wholly lose all costs, disbursements, labor, and expenses he has incurred in making the same, as in such case the said Cable will not purchase said premises at such sale, and as your petitioner is advised that, under the facts and circumstances aforesaid, the said Cable will not be liable in law or equity to your petitioner for the same, or in any respect, on account of said agreement so made with him as aforesaid.' He then asserted the priority of the lien of the Waugh mortgage over that of Sisson, and that, although Ellis had notice of his acts and proceedings, no objection was made to what he did in the way of improvements. After referring to the pleadings and proceedings in the cause for further particulars, he submitted his rights to the court, and prayed that, if the premises should be sold under the decree, 'it shall be ordered and directed that out of the proceeds of such sale there shall be paid to your petitioner such part thereof as shall bear the same ratio to the whole amount of the proceeds of such sale as the value of said improvements shall bear to the whole value of said premises, or an amount equal to the value of said improvements, such ratio or value of said improvements to be first determined, as the court shall order and direct, in accordance with chancery practice, and for such other and further relief in the premises as shall seem meet and proper.'

This petition was answered by Ellis on the twenty-first of July, and by the other parties in opposition within a few days after, but on the twenty-ninth of July Ellis moved to strike the intervening petition from the files for reasons stated. Before this motion was disposed of, and at the same term, to-wit, on the thirtieth of July, Hiram Cable filed his petition for the removal of the causes as consolidated to the circuit court of the United States for the Northern district of Illinois, alleging that the value of the matter in dispute exceeded $500; that he was a citizen of Iowa and Ellis a citizen of Missouri, and Austin, Sumner & Co. citizens of Massachusetts; that none of the other parties to the causes were citizens of Iowa; that 'there is a controversy presented and made by his intervening petition * *  * which is wholly between citizens of different States, and which can be fully determined as between the sole parties interested therein in the circuit court of the United States,' and that such controversy was solely between him and Ellis and Austin, Sumner & Co. On the twenty-ninth of August the state court made an order staying all further proceedings in that court and transferring the causes to the circuit court of the United States. Afterwards all parties entered their appearance in the circuit court, and thereupon Ellis moved to remand. This motion was granted on the sixth of April, 1882, and from that order the present appeal was taken.

Both Philander Cable and Hiram Cable acquired their respective interests in the property involved in, this litigation during the pendency of the suit brought by Thomas B. Ellis in 1861 to establish his alleged superior lien. Philander Cable is concluded by all that has been done, because he was and is an actual party to the suit. There has been no time since the first term of the Mercer county circuit court, after the act of March 3, 1875, c. 137, was passed, that he could remove the suit from the state court. Removal Cases, 100 U.S. 473. Hiram Cable made the arrangement with Philander Cable on which all his rights depend long after that time had gone by. In fact, the decree of June 13, 1875, was the result of a hearing begun after the act went into effect. So that the question here is whether Hiram Cable has by his petition of intervention, after 20 years of litigation between the original parties, introduced a new and separate controversy into the suit, which entitles him on his own application to transfer the whole case to the circuit court of the United States. If Hiram Cable is not to be concluded by anything done in his absence, he ought not to be allowed to force himself into the suit at this late day. No sale made under a decree to which he is not actually or constructively a party can cut off his rights. If he can be bound by a decree in his absence, it is because he has been all the time represented in the suit by Philander Cable under whom he claims, and as an intervenor he can do nothing that might not have been done for him by his representative without his intervention. He took his place by intervention in the suit subject to all the disabilities that rested at the time on the party in whose stead he is to act. If his application to have his rights in respect to the improvements he has put on the property settled in this suit can be entertained at all, it will be only as an incident to the original controversy, and whatever would bar a removal of suit before he intervened will bar him afterwards, even though by his intervention he may have raised a separate controversy.

This disposes of the case, for, as has already been seen, the right to remove this suit was barred long before Hiram Cable intervened. Without, therefore, determining whether Hiram Cable can claim the benefit of his improvements, notwithstanding the pendency of the suit, or whether, if his petition had been filed in time, he would have been entitled to a removal of the suit on the showing made, we affirm the order remanding the cause.

title: Cable v. Ellis/Opinion of the Court


text: Talk:Cable v. Ellis/Opinion of the Court


text:
Tupper v. Wise

WAITE, C. J.

title: Tupper v. Wise


text: Talk:Tupper v. Wise

title: Talk:Tupper v. Wise


text:
Tupper v. Wise/Opinion of the Court

This was a suit brought by Wise, the defendant in error, against the plaintiffs in error and others, to recover the possession of section 21, township 3 N., range 8 E., Mount Diablo base and meridian, containing 630 acres of land. Tupper answered, denying that he was in possession of any part of the section except the N. E. 1/4, and to that he set up a pre-emption claim and settlement. Lenfesty made the same answer and claim as to the S. E. 1/4. There was no joint ownership or joint possession. Each defendant claimed a separate and distinct interest in a separate and distinct part of the land. The jury found that the 'defendants were each severally in the wrongful possession of the lands respectively described in their several answers, and no others, and that the value of the rents and profits of the land so held and possessed by defendant Tupper is one hundred dollars, of the land so held and possessed by defendant Lenfesty one hundred dollars, and that the value of each one of said tracts of 160 acres is three thousand dollars, and of the two of them six thousand dollars.' Judgment was thereupon rendered against Tupper for the possession of his tract and $100 damages, and against Lenfesty in the same way. Tupper and Lenfesty then sued out this writ of error, which Wise moves to dismiss, because the claims of the several plaintiffs in error are separate and distinct, and the value of the matter in dispute with either of them does not exceed $5,000.

This motion is granted. The rule is well settled that distinct judgments in favor or against district parties, though in the same record, cannot be joined to give this court jurisdiction. The whole subject was fully considered at the last term in Ex-parte Baltimore & O. R. Co. 106 U.S. 5; [S.C.. 1 SUP. CT. REP. 35;] Farmers' Loan & Trust Co. v. Waterman, 106 U.S. 265; [S.C.. 1 SUP. CT. REP. 131;] Adams v. Crittenden, 106 U.S. 576; [S.C.. 1 SUP. CT. REP. 92;] Schwed v. Smith, 106 U.S. 188; [S.C.. 1 SUP. CT. REP. 221.] The stipulation as to the value of the property which is found in the record cannot alter the case, for it states that the aggregate value of the two quarter sections exceeds $5,100, and the verdict fixes the value of each quarter at $3,000. Dismissed.

title: Tupper v. Wise/Opinion of the Court


text: Talk:Tupper v. Wise/Opinion of the Court


text:
Bean v. Patterson (110 U.S. 401)

James S. Botsford, for motion.

S.C.. 12 Fed. Rep. 739.

djQ WAITE, C. J.

In this case the appellants have delivered to the clerk the requisite number of copies of the record in print, and they ask to docket the cause without securing the payment of the fee chargeable under the present rules in connection with the printing. The act of March 3, 1883, c. 143, (22 St. 631,) making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1884, made an entire change in the emoluments of the clerk of this court. Before that act the clerk collected the fees of his office, paid the expenses, and kept what remained as his own compensation. He was not accountable to the government or to any one else for the income. The act of 1883 established a maximum for his annual compensation, and required to pay into the treasury all the fees and emoluments of the office over his salary, necessary clerk hire, and incidental expenses. The same act made it the duty of the court to prepare a table of fees to be charged by the clerk. This was done, and among the rest, is the following: 'For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio.' Rule 24, § 7.

The clerk is responsible to the court for the correctness and proper indexing of the printed copies of the record, for their presentation to the justices in the form and of the size prescribed by the rules, and for their delivery, when required, to the parties entitled thereto. As he must now account to the treasury for the fees and emoluments of his office, he may demand payment in advance. Steever v. Rickman, 109 U.S. 74; [S.C.. 3 SUP. CT. REP. 343.] If the printing is actually done under his supervision he may require the payment of the fee chargeable under the rule before the printing is done. If the parties themselves furnish the printed copies, the fee must be paid, if demanded, in time to enable him to make the necessary examinations and be ready to deliver the copies to the parties or their counsel and to the court when needed for any purpose in the progress of the cause. The fee is for the service specified in this item of the table, and is indivisible. Consequently, if the clerk performs any part of the service he is entitled to collect the whole fee; and if the printed record is used at all, it must be examined by him to see if it conforms to the copy certified below and on file as the transcript of the record. So that if the printed copies are used for any purpose in the progress of the cause the whole fee is chargeable. As the law now stands the fees and emoluments of the office belong to the government, subject only to the payment of the annual salary of the clerk, necessary clerk hire, and incidental expenses, and the clerk is the collecting agent for the government. As this record has been printed the case may be docketed without security for this fee, but the printed copies cannot be delivered to the justices or the parties for use on the final hearing or on any motion in the progress of the cause unless the fee is paid, when demanded by the clerk, in time to enable him to make his examinations and perform his other duties in connection with the copies.

Rule 31 relates only to the form and size of the printed records, briefs, and arguments, and has nothing to do with the fee now in question.

title: Bean v. Patterson (110 U.S. 401)


text: Talk:Bean v. Patterson (110 U.S. 401)

title: Talk:Bean v. Patterson (110 U.S. 401)


text: Bean v. Patterson (110 U.S. 401)/Opinion of the Court


text: Talk:Bean v. Patterson (110 U.S. 401)/Opinion of the Court


text:
Conro v. Crane (110 U.S. 403)

On the fifth of June, 1875, Harry Fox and William B. Howard, copartners as Fox & Howard, were adjudged bankrupts, on the petition of their creditors, by the district court of the United States for the Northern District of Illinois. On the sixteenth of June, Bradford Hancock was appointed by that court provisional assignee. He took possession of the property hereinafter mentioned, and on his petition the court made an order, on June 19th, directing him to advertise for sealed bids for the purchase of the property, either as a whole or in parcels, the bids to be opened by the judge of the court on July 1st. The property consisted of tug-boats, dredges, pile-drivers, and scows, and articles used in connection therewith. On July 2d the assignee reported to the court a bid of $40,000 by Jefferson Hodgkins, for certain of the property, and recommended its acceptance. On July 9th the court made an order approving of and confirming the sale, and directing the assignee, on the receipt of the $40,000, to execute to Hodgkins all transfers necessary to vest in him the title of the bankrupts to the property, and to deliver to him the immediate possession thereof, and to pay the $40,000 into court. On the twelfth of July the assignee presented to the court a sworn petition, setting forth that he had repeatedly called on Hodgkins to pay over to him the purchase money, and had on July 10th presented to Hodgkins a certified copy of the order confirming the sale, and demanded payment of the $40,000, or a deposit on account thereof, and offered delivery of the property on payment; that Hodgkins had neither payed nor deposited anything; that Conro & Carkin (a firm composed of Albert Conro and Willard S.C.arkin) had made a bid of $40,500 for the same property, agreeing to assume certain charges; and that he believed it to be for the best interest of the estate that the order confirming the sale to Hodgkins should be set aside, and that the property be sold to Conro & Carkin. On the same day the court made an order ex parte, setting aside the order of sale to Hodgkins, annulling such sale, accepting the bid of Conro & Carkin, and directing that the property included in the bid of Hodgkins be sold to Conro & Carkin for $40,500, on the terms of their bid, and that the assignee deliver the property to them, with proper bills of sale, on their paying to him the $40,500. On the same day Conro & Carkin paid to the assignee the $40,500, and he delivered to them a bill of sale of the property, and put the property into their possession.

On the tenth of August, Hodgkins filed in the circuit court of the United States for the Northern district of Illinois a petition for the review of the order made by the district court on July 12th. That petition alleged that Charles S.C.rane was the principal in the Hodgkins bid. On the thirteenth of August the circuit court, on a hearing on the petition of review, made an order stating that it was of opinion that the district court should not have made the order of July 12th without giving Hodgkins or Crane an opportunity to be heard, and directing the district court to open and set aside that order, and give Hodgkins or Crane an opportunity to be heard on the application to set aside or vacate the order of July 9th, and that in the mean time, and until the action of the district court thereon, nothing should be done in relation to the property, by any of the parties, prejudicial to the rights of Hodgkins or Crane.

On the eighteenth of August, Hodgkins and Crane filed their joint petition in the district court, praying that the order of July 12th be set aside; that the property be delivered to them; and that Conro & Carkin, the bank rupts, and the assignee, pay to them the value of the use of the property from July 12th. The petition alleged that the bid of Hodgkins was made on behalf of and by the direction of Crane, and that the assignee and Conro & Carkin had acted in bad faith. Hancock had been duly appointed assignee in bankruptcy, and he and Conro & Carkin and the bankrupts were made parties to the proceedings by a rule to show cause. The assignee answered the petition on the twenty-seventh of August. Under an order of the district judge, the petitioners paid into the district court, on the sixth of September, the sum of $40,000. On the thirteenth of September, Conro & Carkin filed a joint answer to the petition. Testimony was taken before a register on the issues raised. The matter was heard by the district court on the fourth of November, and on the sixth of March, 1876, it made an order dismissing the petition on the merits. On the same day Crane and Hodgkins filed in the circuit court a petition of review, praying for a reversal of the action of the district court. On the tenth of April the circuit court made an order reversing and setting aside the orders made by the district court, July 12, 1875, and March 6, 1876, and confirming its own order of August 13, 1875. On the twenty-fourth of April the circuit court made a further order vacating the order made by the district court, July 12, 1875, and decreeing that the order made by the district court, July 9, 1875, remain in full force and effect as originally made, and then proceeding as follows: 'And it appearing that the sum of forty thousand dollars has been paid into the district court on the sale confirmed to the said Hodgkins on the ninth day of July, A. D. eighteen hundred and seventy-five, and this court being of opinion that, upon the payment of the purchase money by the said Hodgkins, the order of the ninth day of July aforesaid vested in him from that date all the right, title, and interest of the bankrupts in the property, the district trict court is hereby directed to order the assignee to execute and deliver to the said Hodgkins the necessary papers to show the title in the said property, and to cause the assignee to deliver the said property to the said Hodgkins or to the said Crane. And the district court is hereby directed and required to make all needful rules and orders, summary or otherwise, to carry into effect the said confirmatory order of July 9, A.D. eighteen hundred and seventy-five. And the district court is directed to return, subject to the conditions hereinafter stated, to the said Conro & Carkin, the sum of forth thousand five hundred dollars, the amount of purchase money paid by them, the sale to them being hereby annulled and set aside. * * * And there being a question raised as to the rights of the parties growing out of the possession for a time of the property by Conro & Carkin, and of certain moneys paid by them for claims thereon, expenses, improvements, and repairs, as well as the profits, it is ordered that the said Conro & Carkin, or the assignee, or the said Crane and Hodgkins, or either of them, may have the right to file a bill or to commence other legal proceedings in any court having jurisdiction thereof, as they may be advised, to determine the rights or equities of the parties. And the district court may, on the application for that purpose, retain any part of the money now in the district court and belonging to Conro & Carkin, or require security, before the said money is paid to them, from the said Conro & Carkin, to answer for any claim due from them, growing out of the possession and use of the property, to any party or parties entitled thereto.'

Conro & Carkin and the assignee took an appeal, May 3, 1876, to this court from that order. On the fifth of May, 1876, Crane and Hodgkins obtained possession of nearly all the property in question by means of a writ of replevin issued from a court of the state of Illinois, and on the ninth of May, 1877, they obtained possession of a pile-driver, part of the property. The case in this court was docketed here, but was, on motion of the appellees, dismissed for want of jurisdiction, on March 19, 1877. Conro v. Crane, 94 U.S. 441. On the twenty-fourth of May, 1877, the district court made an order that Conro & Carkin have leave to withdraw the $40,500 on their giving a bond in the penalty of $30,000, which they gave, with three sureties, conditioned that they would appear without delay to any suit or bill which might be brought against them, by any person concerned, touching the premises, and would pay all claims due from them to any parties entitled thereto, growing out of the use of the property in question. On the same day the $40,500 was paid back to them, and the bill in this suit was filed by Crane and Hodgkins, in the circuit court of the United States for the Northern district of Illinois, against Conro & Carkin and the assignee.

The bill sets forth the foregoing matters, and charges fraud and conspiracy, and alleges that Conro & Carkin derived profits from the use of the property and were the constructive trustees of the plaintiffs in using it, and prays for an account of such profits, and of the expenses incurred in using the property, and of the fair rental value of the property, and of the value of its use, and of the expenses of the plaintiffs in defending their title and obtaining possession of the property, and for a decree against the defendants therefor. The defendants answered the bill, and there were replications to the answers. The proofs so taken before the register in bankruptcy were used in evidence, and further proofs were taken on both sides. An order of reference to a master was made in June, 1879, under which, after taking further evidence, he reported as to the rental value of the property from July 12, 1875, during the time Conro & Carkin had it, and as to the amount of profits they derived from it while they had it, and also as to what they paid for repairs on it, and as to what Crane and Hodgkins had paid for fees and expenses in recovering or defending the title to the property in the previous litigations. The appellants and the appellees excepted to the report, and the court made a final decree which contained the following provisions: 'That the said defendants Albert Conro and Willard S.C.arkin be held to account for the reasonable value of the use of said property in the pleadings described, while the same was withheld from the possession of the said complainants by the defendants Conro & Carkin, which value, in the judgment of the court, is, in this case, equal to the net profits realized by them from the use of said property other than pile-driver No. 6, from July 12, 1875, to May 5, 1876, being, as the master reports, the sum of fourteen thousand six hundred and ninety-three dollars and seventy-nine cents, ($14,693.79,) the report of the said master in that behalf being hereby confirmed; and that the said complainants ought to have and recover of the said Albert Conro and Willard S.C.arkin the said last-mentioned sum, with interest thereon at the rate of 6 per cent. per annum from May 5, 1876; and also that the said complainants are entitled to a decree against the said Albert Conro and Willard S.C.arkin for the further sum of three hundred dollars ($300) for the use of pile-driver No. 6, with like interest from the ninth day of May, 1877; and that the said complainants ought to have and recover of the said Albert Conro and Willard S.C.arkin the said lastmentioned sum, with interest as aforesaid. And it further appearing to the court that the said two sums of money and interest thereon as aforesaid amount, at the date of the entry of this decree, to the sum of eighteen thousand and seventy dollars, ($18.070.00,) it is thereupon further ordered, adjudged, and decreed by the court that the said complainants do have and recover of the said defendants Albert Conro and Willard S.C.arkin the last-mentioned sum of eighteen thousand and seventy dollars, besides the costs of this suit, to be taxed.' From this decree Conro & Carkin have appealed to this court.

Lyman Trumbull, for appellant.

John S.C.ooper, for appellee.

BLATCHFORD, J.

title: Conro v. Crane (110 U.S. 403)


text: Talk:Conro v. Crane (110 U.S. 403)

title: Talk:Conro v. Crane (110 U.S. 403)


text:
Conro v. Crane (110 U.S. 403)/Opinion of the Court

It is contended by the appellants that the circuit court had no jurisdiction of this suit because the assignee was a citizen of the same state with the plaintiffs. But no relief was granted against him by the final decree, and, although the suit was not formally dismissed as to him, it is evident that he was treated throughout as only a formal party. There was jurisdiction by citizenship as to the other parties, and the real controversy was between them. The record does not show that the appellants raised this question in the circuit court. Under these circumstances, it is not proper to allow the jurisdiction between the real parties to be now challenged on this ground.

It is also contended that the remedy of the appellees was at law and not in equity. Waiving the consideration of this question, we prefer to dispose of the case on its merits. We are unable to perceive any relation of trust between the appellants and the appellees. The former were clother with no fiduciary character as respects the latter, by reason of any relation existing between them prior to the making by the appellants of their bid, nor did the holding of the property by the appellants create such relation. The appellants received the property and paid their $40,500 under the sanction of an order of the court, which not only authorized the sale to them, but set aside the order of sale to Hodgkins and annulled such sale. They purchased at a judicial sale, and received the property from the hands of the court. The court made the second order of sale without notice to Hodgkins or Crane. That was held to be erroneous. On a hearing, the district court maintained the propriety of the order. On review, the decision was reversed, and the circuit court, being of opinion that, on the payment by Hodgkins of the purchase money, the original order of sale to him vested in him, from July 9, 1875, all the right, title, and interest of the bankrupts in the property, directed that the district court order the assignee to deliver to Hodgkins the necessary title papers of the property, and cause the assignee to deliver the property to Hodgkins or Crane. It also directed the district court to return to Conro & Carkin their $40,500, the order saying, 'the sale to them being hereby annulled and set aside.' The order did not conclude or determine anything as to any liability of the appellants to any one for profits or rent or value of use of the property. On the contrary, it gave to all parties, the appellants or the appellees or the assignee, the right to institute legal proceedings in any competent court to determine the rights or equities of the parties growing out of the possession of the property by the appellants, and out of their having paid moneys for claims, expenses, improvements, and repairs thereon, and out of the profits, as to all of which matters it stated a question was raised. The declaration in the order of the circuit court, that Hodgkins, having paid his $40,000, was vested, by the order of July 9, 1875, from that date, with the title of the bankrupts to the property, did not confer on Hodgkins or the appellees the right to collect rent, or value or profits of use, from the appellants, for the time they had the property. Nor did the provision of the order in regard to the retention by the district court of part of the money paid by the appellants, or the giving of security by them, have that effect. The question of their liability depended on many other considerations.

There was no privity of contract between the appellees and the appellants. The latter held the property adversely to the former for 8 months and 29 days, and all the time under the authority of an order of the district court. The appellees recovered possession of nearly all of the property 25 days after the order of the circuit court was made. The appellants were deprived of the use of their $40,500 from July 12, 1875, to May 24, 1877, a period extending beyond the time during which they held any of the property, and the money was returned to them only on their giving a bond with three sureties. The appellees succeeded to the title of the bankrupts and the assignee to the property from July 9, 1875, according to the order of the circuit court, but they could have no greater rights in respect to recovering from the appellants for the use of the property after that date than the assignee could have, because they held under him and derived all their rights from him; and he could have none so long as he withheld the $40,500 from the appellants. He could not keep the money and still have rent for the property. That would be to keep the money and virtually the property too, by recovering for the use of the latter. The legal presumption is that the appellants could, by the use of the money, have procured like property, and made out of it the profits decreed against them.

The rights in question which the appellants acquired by the judicial sale are to be protected so long as the order of sale was in force. Moreover, during the entire period, after the order was reversed as well as before, the court and the assignee retained the money of the appellants. The title of the appellants to the property, and their right to keep it was purchasers, were, undoubtedly, subject to the result of the litigation had. But a rescission of the sale and the destruction of their title involved, as a necessary element, the return to them of their money, so far certainly as any claim for rent or profits was concerned.

We do not think it necessary to refer to the voluminous testimony adduced on the question of bad faith and fraud. We see no sufficient evidence to impeach the good faith of the appellants, nor do we understand, from the opinion of the circuit court on the review in bankruptcy, that the court questioned their good faith or fair dealing, whatever views it expressed as to the conduct of the assignee.

The present case has no resemblance to one in which a purchaser has been held entitled to a rebate or allowance from the purchase money of land for occupation or rent while kept out of possession by a plaintiff, on a sale made by the court in the suit, and for expenses of obtaining possession. Thomas v. Buxton, L. R. 8 Eq. 120. If the appellees might have been entitled to a deduction from the amount of their bid because of the action of the assignee, the bankrupt estate could not reimburse itself for its loss from such action by making the appellants responsible for it. Nor does the doctrine applied to a purchaser who duys land with notice of a prior equitable estate apply to the appellants. The district court vacated the prior sale by the same order which accepted the bid of the appellants, and the order referred to the petition of the assignee, which set forth that Hodgkins had not paid his bid; and there was annexed to the petition a copy of the bid of the appellants, which stated that they made it understanding that Hodgkins had not complied with his proposition. As to the appellants there was, at the time they paid their money, no outstanding contract with or sale to Hodgkins by the assignee. Nor is there any analogy between this case and one of liability by a grantee in a voluntary conveyance held void as made in fraud of creditors, for rents and profits from the property.

The appellees cite the case of Raun v. Reynolds, 15 Cal. 460. The history of the case gathered from the above report, and from 11 Cal. 14, and 18 Cal. 275, and Reynolds v. Harris, 14 Cal. 667, shows that a decree foreclosing two mortagages on land had directed that two different parcels, one covered by one of the mortgages and the other by the other, should be sold together, although one parcel was owned by one mortgagor, and the other by him and another person jointly, as mortgagors, such other person being merely a surety. The property was sold under the decree, at auction, by the sheriff, the two parcels being sold together to the plaintiff. He then sold and assigned the decree, and his rights as purchaser, and the sheriff's certificate of sale, to one Harris. After that the defendants appealed from the decree. The decree was reversed for error in the above directions as to the sale. The time for redemption from the sale having expired without any redemption, Harris obtained possession of the property by a writ of assistance. On an application by the defendants to have the sale set aside and to be restored to possession, it was held that the plaintiff could obtain no advantage by a purchase under his own erroneous judgment; that Harris was not within the protection of an innocent purchaser without notice; and that he took the plaintiff's claim subject to the defendant's right of appeal and reversal, and occupied the plaintiff's position, with all his rights as well in the decree and the debt as in the purchase, the decree being unaffected by any payment resulting from the sale. The application of the defendants was granted, and they were restored to possession. A question then arose as to the rents and profits while they were out of possession. Under the foregoing views, and as the mortgage still remained valid, to be enforced by Harris, under the decree, the court held that Harris must be treated as a mortgagee in possession, and was bound to credit on the mortgage the amount he had received out of the property. This case is wholly unlike the one before us, and affords no support to the claim of the appellees. If anything, it goes to show that the appellees might properly have claimed that the assignee should credit on their purchase money the rents and profits of the property during the time they were kept out of its possession by the action of the assignee, which was in the end held to have been unlawful.

The case of Lupton v. Almy, 4 Wis. 242, was a similar one, of a purchaser who owned the decree at the time of the sale, and took possession of the property after the sale had been set aside, and was treated as a mortgagee in possession, and held liable for rents and profits.

The decree of the circuit court must be reversed, and the case be remanded to that court, with direction to dismiss the bill.


text: Talk:Conro v. Crane (110 U.S. 403)/Opinion of the Court


text:
Alexander v. Bryan

J. Little Smith, P. Phillips, and

W. Hallett Phillips, for plaintiff in error.

H. Pillans, for defendant in error.

BLATCHFORD, J.

title: Alexander v. Bryan


text: Talk:Alexander v. Bryan

title: Talk:Alexander v. Bryan