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Insurance Company v. Brame

ERROR to the Circuit Court of the United States for the District of Louisiana.

This is an action by the Mobile Life Insurance Company against Brame, to recover the sum of $7,000.

The plaintiff alleged that it insured the life of one Craven McLemore, a citizen of Louisiana, for that amount in favor of third parties; that on the 24th of October, 1875, while its policies were in force, Brame did, in the town of Delhi, in Louisiana, wilfully shoot said McLemore, and inflict upon him a mortal wound, from the effects of which he died on the twenty-sixth day of that month; that the shooting was an illegal and tortious act on the part of Brame, and caused damage to the plaintiff in the amount of the policies on the life of the deceased, which amount the plaintiff acknowledges to be due, and a part of which has been paid.

An exception of the defendant to the plaintiff's petition was sustained, and judgment rendered in his favor. The company then brought the case here.

The Revised Civil Code of Louisiana contains the following articles:--

'ART. 2314. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive, in case of death, in favor of the minor children and widow of the deceased, or either of them, and in default of these, in favor of the surviving father or mother, or either of them, for the space of one year from the death.'

'ART. 2316. Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill."ART. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable in solido with that person for the damage caused by such act.'

Mr. Charles E. Fenner for the plaintiff in error.

The authorities agree that a man is responsible for any direct damage to another, resulting from his unlawful act. 1 Chitty on Plead., 125-130, 147; 1 Hilliard on Torts, 97; Field on Damages, sect. 599; Scott v. Shepherd, 2 Black., W. 892; R ynolds v. Clarke, Stra. 635; Salsbury v. Hershinroder, 106 Mass. 458; Smith v. Rutherford, 2 Serg. & R. (Pa.) 358; Mott v. Hudson River Railroad Co., 8 Bosw. (N. Y.) 345; and particularly Ricker v. Freeman, 50 N. H. 420.

For the purposes of this case, it stands admitted that the act of defendant was unlawful; and it would be difficult to conceive of a more direct consequence than the damage done to the plaintiff. The damage is not only direct, but it is also a certain pecuniary loss, thoroughly appreciable in dollars and cents, according to scientific life-tables, which have been frequently recognized by the courts as proper standards in estimating such damage. Field on Damages, sect. 632; Rowley v. London Railroad Co., 8 Law Rep. Ex. 221; David v. Southwestern Railroad Co., 41 Ga. 223; Donaldson v. Mississippi Railroad Co., 18 Iowa, 280; Blake v. Midland Company, 18 Q. B. 93.

Hubgh v. New Orleans & Carrollton Railroad Co., 6 La. Ann. 495, and Hermann v. Carrollton Railroad Co., 11 id. 5, are confined to actions for damages by relations of the deceased, and neither by their terms nor reasons extend to this action.

The amendment to art. 2294, now 2314, of the Civil Code of Louisiana does not affect the case, because it only applies to the right of action of the injured party for the damage done to him, and provides that the right, in case of his death, shall survive in favor of certain relatives.

Connecticut Mutual Life Insurance Co. v. New York & New Haven Railroad Co., 25 Conn. 265, relied upon by the other side, is entitled to no greater weight as authority than results from the mere force of its reasoning. The present case is governed by the law of Louisiana, which differs from the common law and from that of Connecticut.

A contract of life insurance is similar to a valued policy of fire or marine insurance. The insurer who has paid the loss has in either case the right to recover from the tortious destroyer of the thing insured.

Under the law of Louisiana, which does not differ from the French law in this particular, the right of action of the plaintiff results directly to him without the intervention of any doctrine of subrogation.

Arts. 2314, 2316, and 2324 of the Revised Civil Code of Louisiana fully sanction this action, unless excluded by some authoritative interpretation of them. There has been no such interpretation by the courts of Louisiana which applies either in terms or reasons to this case.

Mr. John H. Kennard, contra.

It is the general rule that a party is not liable civiliter for taking human life, or for any damages resulting therefrom. Connecticut Mutual Life Insurance Co. v. New York & New Haven Railroad Co., 25 Conn. 265. The exceptions to this rule under the Civil Code of Louisiana have no relation to any other parties than the relatives of the deceased.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Insurance Company v. Brame


text: Talk:Insurance Company v. Brame

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title: Talk:Insurance Company v. Brame


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Insurance Company v. Brame/Opinion of the Court

The argument of the insurance company is that the killing of the deceased was an injury to or violation of a legal right or interest of the company; that, as a consequence thereof, it sustained a loss, which is the proximate effect of the injury.

The answer of the defendant is founded upon the theory that the loss is the remote and indirect result merely of the act charged, that at the common law no civil action lies for an injury which results in the death of the party injured, and that the statutes of Louisiana upon that subject do not include the present case.

The authorities are so numerous and so uniform to the proposition, that by the common law no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question. It has been decided in many cases in the English courts and in many of the State courts, and no deliberate, well-considered decision to the contrary is to be found. In Hilliard on Torts, p. 87, sect. 10, the rule is thus laid down: 'Upon a similar ground it has been held that at common law the death of a human being, though clearly involving pecuniary loss, is not the ground of an action for damages.' The most of the cases upon the subject are there referred to. Baker v. Bolton et al., 1 Camp. 493; Connecticut Mutual Life Insurance Co. v. New York & New Haven Railroad Co., 25 Conn. 265; Kramer v. Market Street Railroad Co., 25 Cal. 434; Indianapolis, Pittsburg, & Cleveland Railroad Co. v. Kealy, 23 Ind. 133; Hyatt v. Adams, 16 Mich. 180; Shields v. Yonge, 15 Ga. 349; Peoria Marine & Fire Insurance Co. v. Frost, 37 Ill. 333. The only cases that tend to the contrary of this rule, so far as we know, are Cross v. Guthery, 2 Root (Conn.), 90, Plummer v. Webb, Ware, 69, and Ford v. Monroe, 20 Wend. (N. Y.) 210. They are considered by the New York Court of Appeals in Green v. The Hudson River Railroad Co., 2 Keyes (N. Y.), 294, and compared with the many cases to the contrary, and are held not to diminish the force of the rule as above stated. In that case, the plaintiff alleged that, on the ninth day of January, 1856, his wife was a passenger on the defendants' road, and by the gross carelessness and unskilfulness of the defendants a collision occurred, by means of which his wife was killed, 'whereby he has lost and been deprived of all the comfort, benefit, and assistance of his said wife in his domestic affairs, which he might and otherwise would have had, to his damage,' &c. A demurrer to this complaint, upon the ground that the facts alleged constituted no cause of action, was sustained by the New York Court of Appeals.

In Hubgh v. New Orleans & Carrollton Railroad Co., 6 La. Ann. 495, the same principle was decided, and in the same manner. In giving its opinion, the court say: 'The exception of the defendants presents the question whether the death of a human being can be the ground of an action for damages.' Not being satisfied with this decision, Messrs. Ogden & Duncan asked for a rehearing, the argument for which is reported in the same volume, pp. 498-508. It was denied in an elaborate opinion delivered by Chief Justice Eustis.

In Hermann v. Carrollton Railroad Co., 11 id. 5, this principle was again affirmed in an opinion by Chief Justice Merrick.

It is only necessary to refer to one other case, involving the same principle as those already cited, but in its facts more closely resembling the case under consideration.

In Connecticut Mutual Life Insurance Co. v. New York & New Haven Railroad Co., supra, the declaration alleged that on the twentieth day of March, 1850, the plaintiffs had outstanding and in force a policy of insurance for $2,000 upon the life of Samuel Beach; that Beach was on that day a passenger on the defendants' road; that the defendants so carelessly, negligently, and unskilfully conducted themselves that the train on which Beach was riding was thrown down a bank into the river; that Beach was greatly wounded and bruised, by means whereof he then and there died, by reason of which the plaintiffs were compelled to pay to his administrators the sum of $2,000 upon the said policy.

The allegation of the present plaintiffs is that Brame tortiously and illegally took the life of McLemore by shooting him. This is open to the inference that the act of Brame was felonious. The case in Connecticut is based upon the allegation of negligence and carelessness, and is the more favorable to a recovery, in that it avoids the suggestion existing in the present case, that the civil injury is merged in the felony. The Supreme Court of Connecticut held that the action could not be sustained.

We have cited and given references to the important cases on this question; they are substantially uniform against the right of recovery.

Upon principle, we think, no other conclusion could be reached than that stated. The relation between the insurance company and McLemore, the deceased, was c eated by a contract between them, to which Brame was not a party. The injury inflicted by him was upon McLemore, against his personal rights; that it happened to injure the plaintiff was an incidental circumstance, a remote and indirect result, not necessarily or legitimately resulting from the act of killing. As in Rockingham Insurance Co. v. Mosher, 39 Me. 253, where an insurance company brought suit against one who had wilfully fired a store upon which it had a policy of insurance, which it was thereby compelled to pay, it was held that the loss was remote and indirected, and that the action could not be sustained. In Ashley et al. v. Dixon, 48 N. Y. 430, it was held that if A. is under a contract to convey his land to B., and C. persuades him not to do so, no action lies by B. against C. So a witness is not liable for evidence given by him in a suit, although false, by which another is injured. Grove v. Brandenburg, 7 Blackf. (Ind.) 234; Dunlap v. Gledden, 31 Me. 435. And in Anthony v. Slaid, 11 Metc. (Mass.) 290, a contractor for the support of town paupers had been subjected to extra expense in consequence of personal injury inflicted upon one of them; and he brought the action against the assailant to recover for such expenditure. The court held the damage to be remote and indirect, and not sustained by means of any natural or legal relation between the plaintiff and the party injured, but simply by means of a special contract between the plaintiff and the town. Some text-writers are referred to as holding a different view, but we are not cited to any case in this country or Great Britain where a different doctrine has been held.

By the common law, actions for injuries to the person abate by death, and cannot be revived or maintained by the executor or the heir. By the act of Parliament of Aug. 21, 1846, 9 & 10 Vict., an action in certain cases is given to the representatives of the deceased. This principle, in various forms and with various limitations, has been incorporated into the statutes of many of our States, and among others into that of Louisiana. It is there given in favor of the minor children and widow of the deceased, and, in default of these relatives, in favor of the surviving father and mother. Acts of La., 1855, pr. 223, p. 270. The case of a creditor, much less a remote claimant like the plaintiff, is not within the statute.

In each of the briefs it is stated that the defendant was tried for the homicide, and acquitted. In the view we take of the case, the fact of a trial or its result is a circumstance quite immaterial to the present question, however important it may have been to the defendant.'

Judgment affirmed.


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United States v. Moore (95 U.S. 760)

APPEAL from the Court of Claims.

This was an action in the Court of Claims by Andrew M. Moore against the United States to recover certain pay which he alleged was due him as an officer in the navy.

That court found the following facts:--

1. On the 12th of April, 1869, the claimant was appointed and commissioned an assistant-surgeon in the navy of the United States.

2. On the 24th of February, 1874, after examination, he was found qualified for promotion to the grade of surgeon. He was, on the following day, notified by the Secretary of the Navy that the report of the board of examiners, before whom he had appeared for examination, was approved by the department, and that from that date he would be regarded as a passed assistant-surgeon; and from that date up to the date of the institution of this suit, May 3, 1876, he received pay as passed assistant-surgeon in the first five years after appointment as such.

3. From the 12th of April, 1874, till May 3, 1876, the claimant's service was as follows: On shore-duty, four hundred and thirty-eight days, for which he was paid at the rate of $1,800 per annum; on leave or waiting orders, three hundred and twenty-three days, for which he was paid at the rate of $1,500 per a num.

Upon the foregoing facts the court, being equally divided in opinion, held pro forma, for the purposes of an appeal, that the claimant was entitled to the rate of pay established by law for a passed assistant-surgeon, after five years from the date of appointment; that is to say, when on shore-duty, at the rate of $2,000 per annum, and when on leave or waiting orders, at the rate of $1,700 per annum; and that the claimant was therefore entitled to receive, for the seven hundred and sixty-one days specified, the additional sum of $409.5, for which judgment was entered.

The United States appealed.

Mr. Assistant Attorney-General Smith for the United States.

Mr. John B. Sanborn and Mr. Charles King, contra.

Mr. JUSTICE SWAYNE delivered the opinion of the court.

title: United States v. Moore (95 U.S. 760)


text: Talk:United States v. Moore (95 U.S. 760)


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United States v. Moore (95 U.S. 760)/Opinion of the Court

On the 12th of April, 1869, the appellee was appointed an assistant-surgeon in the navy of the United States. On the 24th of February, 1874, he was examined for promotion to the grade of surgeon. On the following day, he was notified by the Secretary of the Navy that the report of the board of examiners was approved by the department, and that from that date he would be regarded as a passed assistant-surgeon. From that time up to the institution of this suit he received the pay fixed by law for passed assistant-surgeons during the first five years after their appointment as such.

The statutes of the United States provides as follows:--

'The active list of the medical corps of the navy shall consist of fifteen medical directors, fifteen medical inspectors, fifty surgeons, and one hundred assistant-surgeons.' Rev. Stat., sect. 1368. 'No person shall be appointed surgeon until he has served as an assistant-surgeon at least two years on board a public vessel of the United States at sea, nor until he has been examined and approved for such appointment by a board of naval surgeons designated by the Secretary of the Navy.' Id., sect. 1370. 'The commissioned officers and warrant officers on the active list of the navy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coalheavers, and employees in the navy, shall be entitled to receive annual pay at the rates herein stated after their respective designations.'. . . 'Passed assistant-surgeons, passed assistant-paymasters, and passed assistant-engineers, during the first five years after date of appointment, when at sea, $2,000; on shore-duty, $1,800; on leave or waiting orders, $1,500; after five years from such date, when at sea, $2,200; on shore-duty, $2,000; on leave or waiting orders, $1,700.' Assistant-surgeons, assistant-paymasters, and second assistant-engineers, during the first five years after date of appointment, when at sea, $1,700; on shore-duty, $1,400; on leave or waiting orders, $1,000; after five years from such date, when at sea, $1,900; on shore-duty, $1,600; on leave or waiting orders, $1,200.' Id., sect. 1556.

The appellee claims that the phrases, 'after date of appointment' and 'from such date,' touching passed assistant-surgeons, refer to the date of his original appointment, when he entered the service as assistant-surgeon, and not to the time of the notification by the Secretary of the Navy that he would thereafter be regarded as a passed assistant-surgeon. The question arising from these conflicting constructions is the one presented for our determination. The government entertains the latter view, and we think correctly. It has always heretofore obtained in the Navy Department.

The place of passed assistant-surgeon is an office, and the notification by the Secretary of the Navy was a valid appointment to it. United States v. Hartwell, 6 Wall. 385; Const. U.S., art. 2, sect. 2.

The context in which the phrases occur shows clearly that they relate to the appointment of passed assistants, and not to that of assistants who have not passed. The former are there expressly named and provided for. The latter are neither named nor alluded to. They belong to distinc classes, and separate and distinct provision is made for the pay of each.

According to the construction contended for by the appellee, if a passed assistant did not become such until ten years after he entered the service as an assistant, he would receive pay five years as a passed assistant before he reached that grade. This is a necessary consequence of the appellee's proposition, and sets its error in a strong light. Such a result could not have been intended by Congress. It would make the law in all such cases retrospective. A statute is never to be so construed as to have this effect, if it can be reasonably avoided. The presumption, until rebutted, is the other way. Sedgw. Const. 161 and notes.

The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. Edwards v. Darby, 12 Wheat. 210; United States v. The State Bank of North Carolina, 6 Pet. 29; United States v. MacDaniel, 7 id. 1. The officers concerned are usually able men, and masters of the subject. Not unfrequently they are the draftsmen of the laws they are afterwards called upon to interpret.

The appellee insists that he was not appointed by the Secretary of the Navy, because sect. 1369 of the Revised Statutes requires that 'all appointments in the medical corps shall be made by the President, by and with the advice and consent of the Senate.'

It is retorted, in effect, in behalf of the government, that this proposition, if sound, proves too much for the appellee's case; and that, if there was no appointment by the Secretary, then the appellee could not be a passed assistant-surgeon, because, in addition to the Secretary's notification, he was not nominated by the President and confirmed by the Senate.

There is certainly as much foundation for the second theory as for the first one; but neither is correct. The place has every ingredient of an office, and, as we have seen, the appellee was legally appointed to it. The difficulty has arisen from the col lators not having been careful to harmonize the language of the sections. Hence the seeming conflict. But the intention of Congress is clear, and that intention constitutes the law. A thing may be within the letter of a statute, and not within its meaning; and it may be within the meaning, though not within the letter. Slater v. Cave, 3 Ohio St. 85; 9 Bac. Abr., pp. 244, 247, tit, Statute, I., 5; United States v. Babbit, 1 Black, 55. In cases like this, the construction should be such that both provisions, if possible, may stand. The clause in question was obviously as much intended to have effect as the section with which it is in seeming conflict. It may well be held to be an exception, though not so expressed, to the universality of the language of the latter. This obviates the difficulty, harmonizes the provisions, and gives effect to both. We cannot doubt that the phrases, 'after date of appointment' and 'from such date,' have reference to the action of the action of the Secretary, and to nothing else.

Judgment reversed, and cause remanded with directions to dismiss the petition.


text: Talk:United States v. Moore (95 U.S. 760)/Opinion of the Court


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Yeatman v. Savings Institution

ERROR to the Circuit Court of the United States for the District of Louisiana.

On the 22d of July, 1871, O'Fallon & Hatch, a firm doing business at St. Louis, delivered, in pledge, to the New Orleans Savings Institution, a corporation created by the laws of Louisiana, having its place of business in New Orleans, two certificates of indebtedness issued by that State, each for the sum of $5,000, to secure the payment of a promissory note of the firm for $5,000, dated July 21, 1871, made payable to its own order on the 21st of January, 1872, and by it indorsed in blank. It is conceded that the corporation acquired the note and the certificates of indebtedness in due course of business, and for a valuabl consideration. The firm and the individuals composing it were, Nov. 27, 1871, adjudged bankrupts by the District Court of the United States for the Eastern District of Missouri; and, upon the application of creditors, a receiver of the estate and effects of the bankrupts was, by an ex parte order, appointed, with authority to demand and receive all property of every kind and description belonging to them.

An assignee in bankruptcy was afterwards appointed, to whom was conveyed, in the prescribed mode, all the real and personal estate of the bankrupts. First the receiver, and subsequently the assignee, each claiming to act under the authority of that court, demanded of the corporation, in the city of New Orleans, the surrender of the certificates. That demand, repeated more than once, and accompanied by copies of the orders of that court, was uniformly met with a refusal to surrender them, except upon the payment of the note for which they had been pledged. The corporation, by its president, expressed its willingness to surrender them, or have them sold, if an amount sufficient to pay the note was left in New Orleans, with the agent of the receiver and assignee, until proof of its debt should be made in the bankruptcy court. Neither the receiver nor the assignee assented to such an arrangement, but insisted upon the right to the actual custody of the certificates pending the proceedings in bankruptcy. The assignee, upon one occasion, authorized the president of the corporation to sell them, at not less than sixty-eight cents on the dollar, and retain the proceeds, without prejudice to the rights of either party, until the claim of the institution should be proven before a register in bankruptcy, and allowed. But a sale could not be made at that limit, and the authority to sell was withdrawn.

The corporation did not become a party to the proceedings in bankruptcy by proving its debt, or in any other mode.

This action by the assignee in bankruptcy, to recover of the corporation the value of the certificates, was based upon the ground that, by its refusal to surrender possession of them, it had converted them to its own use, and become liable therefor.

The corporation insisted that, having obtained the certificates in due course of business, and for a valuable consideration, it was entitled to hold them until the note should be fully paid.

There was a finding in favor of the corporation; and, judgment having been rendered thereon, Yeatman sued out this writ of error.

Mr. Given Campbell for the plaintiff in error.

Mr. Thomas Allen Clarke for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Yeatman v. Savings Institution


text: Talk:Yeatman v. Savings Institution

title: Talk:Yeatman v. Savings Institution


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Yeatman v. Savings Institution/Opinion of the Court

Counsel for the plaintiff in error has raised numerous questions for our consideration, which, under the view we take of the case, it is not necessary to determine. The sole question which, under the pleadings, it seems essential to decide, is, whether the savings institution, by its refusal to surrender the certificates, can be held to have converted them to its own use.

We are of opinion that this question must receive a negative answer. The savings institution, by virtue of the pledge, acquired a special property in the certificates, and, until the payment of the note for $5,000, was not bound to return them either to the bankrupt, the receiver, or the assignee in bankruptcy. Such are, beyond doubt, its rights at common law, as well as under the Code of Louisiana, which declares that 'the oreditor who is in possession of the pledge can only be compelled to return it when he has received the whole payment of the principal as well as the interest and costs.' Rev. Code La., sect. 3164.

These rights were not affected by any of the provisions of the bankrupt law. The established rule is, that, except in cases of attachments against the property of the bankrupt within a prescribed time preceding the commencement of proceedings in bankruptcy, and except in cases where the disposition of property by the bankrupt is decla ed by law to be fraudulent and void, the assignee takes the title subject to all equities, liens, or incumbrances, whether created by operation of law or by act of the bankrupt, which existed against the property in the hands of the bankrupt. Brown v. Heathcote, 1 Atk. 160; Mitchell v. Winslow, 2 Story, 630; Gibson v. Warden, 14 Wall. 244; Cook v. Tullis, 18 id. 332; Donaldson, Assignee, v. Farwell et al., 93 U.S. 631; Jerome v. McCarter, 94 Id. 734. He takes the property in the same 'plight and condition' that the bankrupt held it. Winsor v. McLellan, 2 Story, 492. In Goddard v. Weaver, 1 Wood, 260, it was well said that the assignee 'takes only the bankrupt's interest in property. He has no right or title to the interest which other parties have therein, nor any control over the same, further than is expressly given to him by the Bankrupt Act, as auxiliary to the preservation of the bankrupt estate for the benefit of his creditors. It would be absured to contend that the assignee in bankruptcy became ipso facto seised and possessed in entirety, as trustee, of every article of property in which the bankrupt has any interest or share.'

These views find direct support in more than one provision of the Bankrupt Act. Among the rights which vest at once in the assignee by virtue of the adjudication in bankruptcy, and of his appointment as such assignee, is the right to redeem the property or estate of the bankrupt. Act of 1867, sect. 14; Rev. Stat., sect. 5046. And, in order that it may be exercised for the benefit of creditors, the assignee is given express authority, 'under the order and direction of the court, to redeem and discharge any mortgage or conditional contract, or pledge, or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the condition thereof, or to sell the same subject to such mortgage, lien, or other incumbrance.' Act of 1867, sect. 14; Rev. Stat., sect. 5066. This is a distinct recognition of the rights of the pledgee as against the assignee. Of course, where the pledge is in fraud of the bankrupt law, and consequently void, the assignee may disregard the contract of pledge, and recover the property for the benefit of creditors. Not so where the pledge, as in this case, was made in good faith, for a valuable consideration, and not in violation of the provisions of the bankrupt law.

The savings institution, therefore, incurred no liability by its refusal to surrender the certificates upon the demand of the receiver or the assignee. Such refusal affords no evidence of a conversion of them to its use.

Nor was its right to hold them impaired by its failure to appear in the bankruptcy court, or its refusal to prove its debt, in the customary form, against the estate of the bankrupts. The only effect of such refusal was to lose the privilege of participating in such distribution of the estate as might be ordered by that court. It had the right to forego that advantage, and look for ultimate security wholly to the certificates which it held under a valid pledge. If the assignee regarded them as of greater value than the debt for which they had been pledged, or if the interest of the creditors required prompt action, he had authority, under the statute and the orders of the court, to tender performance of the contract of pledge, or to discharge the debt for which the certificates were held. He had the right, perhaps, under the orders of the court, to sell them, subject to the claim of the defendant in error. If he desired a sale of them, and a distribution of the proceeds, or if he doubted the validity of the pledge, he could have instituted an action against the corporation in some court of competent jurisdiction in Louisiana, and thereby obtained a judicial determination of the rights of the parties. But none of these obvious modes of proceeding were adopted. The receiver and assignee seem to have acted throughout upon the theory that they had the r ght, immediately upon and by virtue of the adjudication in bankruptcy, to assume control of all property of every kind and description, wherever held, in which the bankrupt had an interest, without reference either to the just possession of others, lawfully acquired, prior to the commencement of proceedings in bankruptcy, or to the liens, incumbrances, or equities which existed against the property at the time of the adjudication in bankruptcy. We have seen that such a theory is unsupported by law.

The conclusions we have announced render it unnecessary to consider any other questions raised in the case.

Judgment affirmed.

NOTE.-In Yeatman v. Butler, Yeatman v. Turnell, Yeatman v. Smith, and Yeatman v. Generes, error to the Circuit Court of the United States for the District of Louisiana, which were argued by the same counsel as was the preceding case, MR. JUSTICE HARLAN, in delivering the opinion of the court, remarked, that the same questions of law which arose in them had been determined in Yeatman v. Savings Institution, supra, p. 764, and that the ruling in that case controlled them.

Judgment in each case affirmed.


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United States v. County of Clark

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

On the 24th of September, 1874, the United States, on the relation of William A. Johnston, filed a petition for a mandamus against the county court of Clark County, Missouri, and the justices thereof.

An amended alternative writ was filed on the 5th of April, 1875, in which it is alleged, that William A. Johnston obtained in said Circuit Court a judgment, June 6, 1874, against said county, for $8,606.64, on four instalments of interest on one hundred bonds of said county, for $500 each, which it executed and delivered June 1, 1871, by order of its county court, under the authority conferred by the charter of the Missouri and Mississippi Railroad Company; that the said county court was authorized and empowered to levy a tax of one-twentieth of one per cent upon the assessed value of taxable property for each year after the issue of said bonds; that by the laws of said State it is the duty of said county court to levy taxes, and pay all the indebtedness of said county; and that, in addition to the said one-twentieth of one per cent, the said county is authorized to levy a tax of one-half of one per cent yearly, on the taxable property of the county, to pay its debts and expenses; that the valuation of taxable property in said county is not less than $3,740,000; that said county court, for the year 1874, levied a tax for county purposes of only four mills on the dollar, leaving unlevied one mill, which they were authorized to levy; that said county court did not levy the tax of one-twentieth of one per cent, nor any other sum, for the years 1872, 1873, and 1874, to pay the interest on said bonds, for which said judgment was rendered; that the tax of one-twentieth of one per cent would not raise over $1,500 or $2,000 a year, while the amount of the bonds issued was $200,000, and required a tax yielding $16,000; that a tax of one mill on the dollar of the valuation will not exceed $3,750, and is not sufficient with the one-twentieth of one per cent to pay said judgment in one year; that an execution was issued on said judgment, and returned 'no property found,' and a demand made on said county court to levy and collect taxes to pay said judgment; that said officers have neglected to levy and collect said taxes; and that said Johnston is without adequate remedy at law.

The writ was thereupon issued, commanding the county court and the justices thereof to 'levy and collect a tax of one-twentieth of one per cent, for the years of 1872, 1873, and 1874, and each of the following years, and apply a pro rata share thereof on the plaintiff's judgment; and to levy the residue of said five-mill tax for the year 1874, and each succeeding year, and collec said taxes, and apply the same yearly on the plaintiff's judgment, until interest at the rate of seven per cent and costs are paid the satisfied in full,' or that they appear on a day named in the writ, and show cause why they refuse to do so.

The defendants, in their answer, alleged, that Clark County, in the year 1872, adopted what is termed in the laws of Missouri 'township organization,' and had from that time been governed by the laws of Missouri pertaining to township organization; that the county court of said county, on May 3, 1871, executed $200,000 in bonds of said county, to pay for two thousand shares of stock for which it had that day wrongfully, fraudulently, and corruptly subscribed in the Missouri and Mississippi Railroad Company, and placed said bonds in the hands of an agent, to be paid over to said company, from time to time, as the said road progressed through said county; that all of said bonds had been fraudulently disposed of by said agent, and remained unpaid, with the coupons thereon; that a judgment for $4,124 had been rendered against said county on coupons of part of said bonds in favor of Waterman & Beaver, on June 6, 1874; that none of said $200,000 of bonds were delivered on the first day of June, 1871, or before January, 1874, and that the same belonged to the county of Clark, until January, 1874; that the county court of said county had no authority to subscribe for said two thousand shares of the capital stock of said Missouri and Mississippi Railroad Company, or issue bonds therefor, or levy a tax to pay the same, except in so far as such authority was conferred by the thirteenth section of an act passed by the General Assembly of the State of Missouri, entitled 'An Act to incorporate the Missouri and Mississippi Railroad Company,' approved Feb. 20, 1865, which provides that it shall be lawful for the corporate authorities of any city or town, or the county court of any county desiring so to do, to subscribe to the capital stock of said Missouri and Mississippi Railroad Company, and issue bonds therefor, and levy a tax to pay the same, not to exceed one-twentieth of one per cent, upon the assessed valuation of the taxable property for each year; that the taxes of 1873 had been levied before the present justices of the county court had been elected; that, knowing that all of said bonds had been fraudulently issued and disposed of, and believing that the holders thereof took the same with notice of the frauds, the defendants refused to levy the tax of one-twentieth of one per cent for the year 1874; that said judgment on said coupons was not rendered until June, 1874, and that by the laws of Missouri the county court is authorized to levy taxes only in the month of April of each year, and has no authority to levy said special tax of one-twentieth of one per cent for more than one year, at one and the same time, or during or for more than one and the same year, and had no authority to levy said tax until said bonds were sold; that Clark County was not authorized to levy a tax of one-half per cent yearly on all the taxable property of said county, to pay its debts and expenses, but that said county, by its county court, was, for the year 1874, empowered to levy such sums as might be necessary to defray the expenses of said county by a tax upon all property and licenses made taxable by law for State purposes, but the county tax should in no case exceed one-half of one per cent; that the defendants did not fail to levy said tax of one-half of one per cent for the year 1874, but that it was fully levied, collected, and paid out for county expenses; that the county court has no authority in any one year to levy taxes for the purpose of paying the expenses of said county, except to the extent of said one-half of one per cent; that all that said tax can produce is necessary to pay the current expenses of said county, and that the said county court had no authority to levy said county taxes to pay the judgment of said Johnston; and that defendants had no authority or power to make any other order or provision than that said special tax of one-twentieth of one per cent on all the taxable property of Clark County, when collected, should be applied pro rata to the payment of all the interest coupons on said $200,000 in bonds, including the said judgment of said Johnston.

The plaintiff demurred to the return. The court overruled the demurrer.

The cause was submitted on the amended writ and return; whereupon the court ordered that a peremptory writ of mandamus be issued against the defendants, commanding them 'to cause a tax levy to be made for the year 1874, on the assessment of that year, to the extent of one-twentieth of one per cent; and for the year 1875, on the assessment of the latter year, at the same rate of one-twentieth of one per cent; the proceeds thereof to be applied, pro rata, to the amount of the judgment in this case, and in other cases, on coupons of bonds of same issue, and also to interest on the other bonds of the same issue; and that respondents cause to be levied, from year to year, the same per cent on assessed values until the pro rata portion thereof, applicable to the judgment, interest, and costs in this case, shall be paid.'

The United States, on the relation of Johnston, having excepted to the refusal of the court to require the levy and collection of the tax of one-twentieth of one per cent for the years 1872 and 1873, and also the levy prayed for in excess of said tax, sued out this writ of error.

Mr. James Grant for the plaintiff in error.

Mr. James O. Broadhead and Mr. George W. McCrary, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: United States v. County of Clark


text: Talk:United States v. County of Clark

title: Talk:United States v. County of Clark


text:
United States v. County of Clark/Opinion of the Court

The judgment of the Circuit Court was correct. The return of the defendants to the alternative writ set up a complete defence, and its averments of fact are admitted by the demurrer of the United States. It is then, for the purposes of this case, an established fact that the county bonds held by the relator, and the coupons upon which his judgment was obtained, were not issued, and, therefore, did not become a debt of the county until Jan. 1, 1874. Until they were issued, they imposed no liability upon the obligor; and, until the liability arose, there was no obligation resting on the county court to levy the tax of one-twentieth of one per cent, authorized by the charter of the Missouri and Mississippi Railroad Company. That tax was, by the act of the General Assembly conferring that charter, allowed for the specific purpose of providing means for the payment of the bonds which might be issued for the payment for the county's subscription to the capital stock of that company. So long as the bonds remained unissued, the tax remained unauthorized. There never was, therefore, any authority given by law for the levy of that special tax for the years 1872 and 1873. The fact that the bonds, when delivered in 1874, had attached to them coupons for interest, which, apparently, had accrued prior to their delivery, could not enlarge the power of the county court, or confer upon it authority to levy in any year more than one special tax of one-twentieth of one per cent. It need not be said that no court will by mandamus compel county officers of a State to do what they are not authorized to do by the laws of the State. A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing, when its exercise is a duty. The Circuit Court was, therefore, right in refusing to order a peremptory mandamus to levy and collect the special tax for the years 1872 and 1873, and in directing it only for the subsequent years.

There was also no error in refusing to order the writ to enforce the levy and collection of other taxes. The county court has, by law, no power to levy, in addition to the special tax allowed by the charter of the Missouri and Mississippi Railroad Company, a tax exceeding the rate of one-half of one per cent of the valuation of the taxable property; and the return to the alternative writ avers, that, for the year 1874, a county tax of one-half of one per cent had been fully levied and collected. If this was so, and the demurrer admits it, the county court was in no default in this particular; and as the petition for the mandamus was presented in 1874, before any default in levying a tax, a more favorable judgment on the demurrer could not have been given for the relator than the court gave.

In thus deciding, we are not to be understood as maintaining all that is averred in the defendants' return to the alternative writ. We do not assert that the relator is without remedy against the county, or that his remedy is restricted to a resort to the proceeds of the special tax. It is enough for this case that the judgment of the Circuit Court was correct on the pleadings.

Judgment affirmed.


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


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Alexandria v. Fairfax

ERROR to the Supreme Court of Appeals of the State of Virginia.

This was an action of covenant, brought in the Circuit Court of the city of Alexandria, Va., by Orlando Fairfax, against the city council of Alexandria, to recover the principal of certain bonds, amounting in the aggregate to $8,700, with the arrearages of interest due thereon.

The following is a copy of one of the bonds:

'No. 35.]

ALEXANDRIA CORPORATION STOCK, $5,200.

'This is due from the common council of Alexandria unto Dr. Orlando Fairfax, $5,200, bearing interest at the rate of six per cent per annum from the first day of July, 1858, payable half-yearly, being stock issued in pursuance of an act of the common council of Alexandria, passed on the twenty-third day of July, 1845, the principal of which is redeemable on the first day of January, in the year 1870, and is transferable only at the office of the auditor of the corporation, in person or by attorney.

'Witness the seal of the common council of Alexandria.

{Alexandria Corporation.}

'W. D. MASSEY, Mayor.

'J. H. MCVEIGH,

'President of Council.

'SAM. J. MCCORMICK, Auditor.'

The defence was that the stock whereof mention is made in the bonds or certificates, and all the right, title, and interest of Fairfax therein, had, with the accrued interest thereon, been condemned to confiscation and sale, under an act of Congress of July, 1862, by a decree of the District Court of the United States for the Eastern District of Virginia, May 4, 1864, and sold by the marshal, who transferred the stock to the purchasers on the books of the auditor of the city. The council recognized this transfer as valid, and issued to the purchasers or their assigns certificates of stock of like tenor and effect. They are still outstanding, and the interest thereon has been paid to the holders of them.

Fairfax was a resident of Alexandria, until the commencement of the rebellion. He then went to Richmond, Va., where he has since resided, taking with him the said bonds or certificates of indebtedness, and he retained possession of them until he brought this suit.

The present controversy turned on the jurisdiction of the District Court. Neither Fairfax nor the city council entered an appearance to the proceedings which resulted in the decree. The order of seizure which the district attorney of the United States for the district within which the city of Alexandria is situate directed to the marshal, with the return made by the latter thereon, is set out in the opinion of this court, and is, therefore, omitted here. The Circuit Court of the city of Alexandria rendered a judgment against Fairfax, which the Supreme Court of Appeals reversed, and rendered one in his favor. The city council thereupon sued out this writ of error.

Mr. S. Ferguson Beach and Mr. Charles E. Stuart for the plaintiff in error cited Miller v. United States, 11 Wall. 268; Tyler v. Defrees, id. 331; Cooper v. Reynolds, 10 id. 308; Brown v. Kennedy, 15 id. 591; P lham v. Way, id. 196; Pelham v. Rose, 9 id. 103; Grignon's Lessee v. Astor, 2 How. 319; Voorhees v. Bank of the United States, 10 Pet. 449; Kempe's Lessee v. Kennedy, 5 Cranch, 173; Williams v. Armroyd, 7 id. 423.

Mr. John Johns, Jr., and Mr. C. W. Wattles for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Alexandria v. Fairfax


text: Talk:Alexandria v. Fairfax

title: Talk:Alexandria v. Fairfax


text:
Alexandria v. Fairfax/Opinion of the Court

Orlando Fairfax, a resident of the city of Alexandria, Va., previous to the outbreak of the late civil war, was the owner of about $8,700 of the obligations of said city, which were in the form of bonds, not negotiable on their face, bearing interest at the rate of six per cent per annum, payable semiannually, and having several years to run, and transferable on the books of the corporation. These obligations were called stock of the city of Alexandria. At the beginning of the war, Fairfax left Alexandria, and joined the Confederates at the city of Richmond, and did not return until the war was over.

During his absence, proceedings were instituted to confiscate this stock, and prosecuted to a decree and sale. The marshal made a transfer of it to the purchaser, who received the interest regularly until Fairfax commenced the present suit against the city to recover the interest so paid, and establish his right to the stock.

The Supreme Court of Appeals of Virginia rendered judgment in his favor, and the city sued out this writ of error.

The single question which we shall consider is, whether there was such a seizure of this stock, or of Fairfax's interest in the debt which the city owed him, as gave to the District Court of the United States jurisdiction to confiscate and sell it under the act of Congress on that subject.

All that was done in the way of seizure appears in the following paper issued by the district attorney of the United States to the marshal of the district, and the marshal's return, indorsed on it:--

'OFFICE U.S. DISTRICT ATTORNEY FOR THE EASTERN DISTRICT OF VIRGINIA,

'ALEXANDRIA, VA., Feb. 22, 1864.

'To the Marshal of the United States for the Eastern District of Virginia.

'In compliance with general instructions, issued by the Attorney-General, under the act of July 17, 1862, entitled 'An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'

'I have to direct that you seize all the right, title, and interest of Dr. Orlando Fairfax, in and to eighty-seven shares of the stock of the corporation of Alexandria, in the eastern district of Virginia, together with all the moneys due him, and becoming due from the said corporation, for dividends upon said stock, together with all the improvements, buildings, rights, privileges, appurtenances, and other hereditaments to the same belonging, or in any wise appertaining, and all right, title, interest, and estate of Dr. Orlando Fairfax therein, as proceedings are to be instituted to secure the confiscation of the same to the use of the United States, under the above-entitled act.

'You will report the seizure to me when the same shall have been made.

'L. H. CHANDLER, U.S. District Attorney.

(Indorsed as follows:) 'No. 88. Order of seizure. Dr. Orlando Fairfax.'

'UNITED STATES MARSHAL'S OFFICE,

'ALEXANDRIA, VA., Feb. 23, 1864.

'I certify that I have seized the within-described property, and given notice to R. Johnson, Esq., auditor of the corporation of Alexandria, as within directed.

'JOHN UNDERWOOD, U.S. Marshal.

'Filed Feb. 24, 1864.' In the present suit, it is among the facts agreed to by both parties, and signed by their counsel as part of the record, that these bonds or certificates of stock were carried by Fairfax to Richmond, and remained in his personal possession during the war. It is, therefore, clear that the marshal made no manual seizure of them, and did not mean to say so by his return, unless he intended to make a false return. It is a fair and reasonable inferen e from the return and the agreed facts in this case, that what he actually did to constitute a seizure, and what he understood to constitute the seizure of this stock, was 'notice to R. Johnson, auditor of the corporation of Alexandria.' The words 'as within directed' turn our attention to the order of the district attorney, under which the marshal acted. It will be there seen that he was directed to seize the interest of Fairfax in eighty-seven shares of the stock of the corporation of Alexandria, with all the moneys due him and becoming due on said stock, together with all improvements, buildings, &c., to the same belonging. If any buildings were seized as 'part of the within-described property,' in the language of the marshal's return, nothing has ever been heard of it since. The order was, in legal effect, to attach the interest of Fairfax in this stock.

We are of opinion that Miller v. United States, 11 Wall. 268, and Tyler v. Defrees, id. 331, establish the proposition that a valid seizure or attachment of this stock, or his interest in it, under the order of the district attorney, is a sufficient seizure to give the court jurisdiction, provided the order and the marshal's action under it are returned into court as the foundation for proceedings under the libel. But no more can be claimed for what was done as a seizure, or intended as a seizure, than if the order had been a writ under the seal of the court.

We are compelled, then, to inquire whether the simple statement of the marshal, that he had given notice to R. Johnson, auditor of the city, was a sufficient seizure, in face of the conceded fact that he had made no actual or manual seizure of any thing, to give jurisdiction. In determining what it was of which Johnson had notice, it is perhaps fair to infer that the marshal read to him the paper issued by the district attorney. He then had notice that the United States government was aware of the existence of the stock or bonds which Fairfax owned; in other words, that the city was indebted to Fairfax, and that proceedings were in this manner initiated for the confiscation of that indebtedness. There can be no doubt that the statute authorized the confiscation of the credits of one who came within its provisions. We have as little doubt that these stocks were credits within its meaning. It is clear that there was a made of reaching them under the act of Congress, notwithstanding the evidences of Fairfax's right to them were in his pocket, and beyond the reach of the process of the court. If the debt due him had been by an individual, there would have been no difficulty in serving such a process or notice on the debtor as would have subjected him to the orders of the court in regard to it. If Johnson, as an individual, had owed the debt to Fairfax, it is probable that the notice served on him would have been sufficient.

But an incorporated city is not an individual, and service of notice or process on one of its citizens is not service on it. It has its officers, who speak and act for it by authority of law; and some one of these officers, either by an express statutory provision, or by the nature of their functions, is the proper person on whom all notices and processes necessary to bind it by judicial proceedings must be served.

It would seem to be reasonable that in proceedings in rem to confiscate property in the absence of its owner, where the seizure of it is a sine qua non to the jurisdiction of the court, and where, as in the present case, actual manucaption is impossible, the evidence which supports a constructive seizure should be scrutinized as closely, and be of a character as satisfactory, as that which would subject the party holding the fund or owing the debt which is the object of the proceedings to an ordinary civil suit in the same court. If this be a correct view of the subject, and we think it is quite as favorable to the validity of the judgment of confiscation as can be maintained on sound principle, it is necessary to inquire if service f process on the auditor would authorize a judgment by default against the city in an ordinary action. We are not informed by any thing in this record, or in the brief, of the nature of his functions. We have no reason to believe that it is any part of his duty to defend actions at law against the city, or to employ counsel for that purpose, or that he had any authority to do so. The word used to describe his office does not imply that, as treasurer, he had in his possession the money or other property of the city. He was not even bound to make record of matters done by or affecting the corporation, as the clerk or secretary of the governing body would be. He was not, probably, a member of the board of councilmen or aldermen, who governed the city, and whose duty it would have been to protect her in such a matter as this.

But we are relieved from any difficulty on this subject by the statute of Virginia, which prescribes, as every law should do under which corporations are organized, the mode of serving process or notice on them. It points out the officers of the corporation on whom such process or notice may be served, and is so liberal in providing for service as to leave no excuse for departing from it by a service on any one else. 'It shall be sufficient to serve any process against or notice to a corporation on its mayor, rector, president, or other chief officer, or, in his absence from the county or corporation in which he resides, or in which is the principal office of the corporation against or to which the process or notice is, if it be a city or town, on the president of the council or board of trustees, or in his absence, on the recorder, or any alderman or trustee.' Code of Virginia of 1860, p. 707, c. 170, sect. 7.

It appears from these bonds or certificates of debt that there was a mayor of the city. On him, if in the city, the law required service to be made. There is no return that he was absent, nor is any reason given why service was not made on him. There were, as it appears, a council, and a president of that council, and he is specially named in the statute as an officer on whom service may be made. No reason is given why service was not made on him.

But it, against all sound principle, we could indulge in presumptions in favor of this jurisdiction, and suppose that both these officers were absent, notice should have been served on an alderman or councilman, since it appears that there were such officers.

We are not informed whether there was a recorder of that city. If there was, he was not served. But, by a strange inadvertence, almost the only officer not mentioned in the statute as one on whom the service may be made is the one selected, while all those are omitted whom the law specifically points out as the proper ones; and for the failure to serve them no reason is given.

In the absence of any appearance by Fairfax or by the city in a case where the proceedings against the debtor and the owner of the debt are wholly ex parte and by default, and in the absence of actual seizure of any tangible evidence of the debt, we are of opinion that no jurisdiction of that debt was acquired by the notice to the auditor, and on this alone it is supposed to rest.

As in this point we concur with the Court of Appeals of Virginia, its judgment is

Affirmed.

MR. CHIEF JUSTICE WAITE concurred in the judgment.


text: Talk:Alexandria v. Fairfax/Opinion of the Court


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Pensacola Telegraph Company v. Western Union Telegraph Company

Page 2 APPEAL from the Circuit Court of the United States for the Northern District of Florida.

In 1859, an association of persons, known as the Pensacola Telegraph Company, erected a line of electric telegraph upon the right of way of the Alabama and Florida railroad, from Pensacola, in Florida, to Pollard, in Alabama, about six miles north of the Florida line. The company operated the whole line until 1862, when, upon the evacuation of Pensacola by the Confederate forces, the wire was taken down for twenty-three miles, and Cooper's Station made the southern terminus. In 1864, the whole was abandoned, as the section of the country in which it was situated had fallen into the possession of the United States troops.

On the 1st of December, 1865, the stockholders met; and it appearing that the assets of the company were insufficient to rebuild the line, a new association was formed for that purpose, with the old name, and new stock to the amount of $5,000 subscribed. A resolution was adopted by the new company to purchase the property of the old, at a valuation put upon it in a report submitted to the meeting, and a new board of directors was elected.

A meeting of the directors was held on the 2d of January, 1866, at which the president reported the completion of the line to Pensacola, and a resolution was adopted, authorizing the purchase of wire for its extension to the navy-yard. The attorneys of the company were also instructed to prepare a draft of a charter, to be presented to the legislature for enactment.

On the 24th of July, 1866, Congress passed the following act: -

'AN ACT to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that any telegraph company now organized, or which may hereafter be organized, under the laws of any State in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States: Provided, that such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.

'SECT. 2. And be it further enacted, that telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster-General.

'SECT. 3. And be it further enacted, that the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person: Provided, however, that the United States may at any time after the expiration of five years from the date of the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent disinterested persons, two of whom shall be selected by the Postmaster-General of the United States, two by the company interested, and one by the four so previously selected.

'SECT. 4. And be it further enacted, that before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster-General, of the restrictions and obligations required by this act.' 14 Stat. 221; Rev. Stat., sect. 5263 et seq.

All railroads in the United States are by law post-roads. Rev. Stat., sect. 3964; 17 Stat. 308, sect. 201.

On the 11th of December, 1866, the legislature of Florida passed an act incorporating the Pensacola Telegraph Company, and granting it 'the sole and exclusive privilege and right of establishing and maintaining lines of electric telegraph in the counties of Escambia and Santa Rosa, either from different points within said counties, or connecting with lines coming into said counties, or either of them, from any point in this [Florida] or any other State.' The capital stock was fixed at $5,000, with the privilege of increasing it to such an amount as might be considered necessary. The company was authorized to locate and construct its lines within the counties named, 'along and upon any public road or highway, or across any water, or upon any railroad or private property for which permission shall first have been obtained from the proprietors thereof.' In this act all the stockholders of the new association which had rebuilt the line were named as corporators. No meeting of the directors was held until Jan. 2, 1868, when the secretary was instructed to notify the stockholders 'that the charter drawn up by Messrs. Campbell & Perry, attorneys, as per order of board, Jan. 2, 1866,' had been passed.

On the 5th of June, 1867, the directors of the defendant, the Western Union Telegraph Company, a New York corporation, passed the following resolution, which was duly filed with the Postmaster-General:--

'Resolved, that this company does hereby accept the provisions of the act of Congress, entitled 'An Act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,' approved July 24, 1866, with all the powers, privileges, restrictions, and obligations conferred and required thereby; and that the secretary be, and he is hereby, authorized and directed to file this resolution with the Postmaster-General of the United States, duly attested by the signature of the acting president of the company and the seal of the corporation, in compliance with the fourth section of said act of Congress.'

In 1872, the property of the Alabama and Florida Railroad Company, including its right of way and railroad, was transferred to the Pensacola and Louisville Railroad Company; and on the 14th of February, 1873, the legislature of Florida passed an act, which, as amended Feb. 18, 1874, authorized the last-named company 'to construct, maintain, and operate a telegraph line from the Bay of Pensacola along the line of the said (its) road as now located, or as it may hereafter be located, and along connecting roads in said county to the boundary lines of the State of Alabama, and the said lines may connect and be consolidated with other telegraph companies within or without the State, and said company may pledge, mortgage, lease, sell, assign, and convey the property appertaining to the said telegraph lines, and the rights, privileges, and franchises conferred by this act, with full power in such assignees to construct, own, and operate such telegraph lines, and enjoy all the privileges, rights, and franchises conferred by this act; but in such case the said railroad company shall be responsible for the proper performance of the duties and obligations imposed by this act.'

This was within the territory embraced by the exclusive grant to the Pensacola Telegraph Company.

On the 24th of June, 1874, the Pensacola and Louisville Railroad Company granted to the Western Union Telegraph Company the right to erect a telegraph line upon its right of way, and also the rights and privileges conferred by the acts of February, 1873 and 1874. The Western Union Company immediately commenced the erection of the line; but before its completion, to wit, July 27, 1874, the bill in this case was filed by the Pensacola Telegraph Company to enjoin the work and the use of the line, on account of the alleged exclusive right of that company under its charter. Upon the hearing, a decree was passed dismissing the bill, and this appeal was taken.

Mr. Charles W. Jones, for the appellant.

Except when prohibited or restricted by the provisions of the State Constitution, the legislature can grant exclusive privileges and franchises within its own jurisdiction. Cooley, Const. Lim. 281; Gibbons v. Ogden, 9 Wheat. 1; West River Bridge Co. v. Dix et al., 6 How. 507; S.C.. 16 Vt. 446; The Binghamton Bridge, 3 Wall. 51; Shorter v. Smith, 9 Ga. 529; The Proprietors of the Piscataqua Bridge v. The New Hampshire Bridge et al., 7 N. H. 35; Boston Water Power Co. v. Boston & Lowell Railroad Corporation et al., 23 Pick. (Mass.) 360; Boston & Lowell Railroad Corporation v. Salem & Lowell Railroad Co. et al., 2 Gray (Mass.), 1; California Telegraph Co. v. The Atlantic Telegraph Co., 22 Cal. 398; Hazen et al. v. The Union Bank of Tennessee, 1 Sneed (Tenn.), 115; The People v. Bowen, 30 Barb. (N. Y.) 24; Livingston v. Van Ingen et al., 9 Johns. (N. Y.) 506; Ogden v. Gibbons, 4 Johns. (N. Y.) Ch. 150.

In Florida there were no such restrictions or prohibitions. On the contrary, by the express terms of sect. 3, art. 15, of her Constitution, the special statute of Dec. 11, 1866, incorporating the appellant and granting the exclusive privileges which are asserted in this suit, is valid.

That statute is not referred to in that of Feb. 14, 1873, or the amendatory act of 1874, and is, therefore, not repealed by a general repealing clause. Crane v. Rider, 22 Mich. 322; State v. Mills, 34 N. J. L. 177; State v. Brannin, 2 Zab. (N. J.) 485; Fostick v. Perrysburg, 14 Ohio St. 474.

The said statute of Dec. 11 is, however, a contract with the State, which cannot be impaired or modified without the company's consent. A subsequent statute interfering with that contract, or the rights thereunder vested, is inoperative and void. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; State Bank of Ohio v. Knoon, 16 How. 369; Dodge v. Woolsey, 18 id. 331; Jefferson Branch Bank v. Skelly, 1 Black, 436; Franklin Branch Bank v. The State of Ohio, id. 74; The Binghamton Bridge, supra; Farrington v. Tennessee, 95 U.S. 679.

The appellee is a New York corporation; and, in the absence of any legislation of Florida empowering it to exercise its corporate franchises in the latter State, can set up nothing in conflict with the exclusive rights of the appellant under its charter. It has no existence or rights beyond the limits of the State which created it, except by the comity or the enabling acts of other States. The Bank of Augusta v. Earle, 15 Pet. 519; Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286; Paul v. Virginia, 8 Wall. 168; Liverpool Insurance Co. v. Massachusetts, 10 id. 566; Railroad Company v. Harris, 12 id. 65.

The act of 1874, under which the appellee claims by assignment from the Louisville & Pensacola Railroad Company, must be construed with reference to this settled principle. The assignment was not effectual to transfer any franchise, because the assignee was, in this instance, incompetent to take.

The act of Congress of July 24, 1866, has no bearing upon the case. It is in substantially the same terms as that of Aug. 4, 1852, 10 Stat. 28, which grants to any railroad, plank-road, or turnpike company the right of way through the public lands, and the right to take therefrom earth, stone, or wood, for the purpose of construction, and to select sites for depots and workshops. It extends, on certain conditions, efficient aid to any telegraph company whose authorized lines are to be established over the public domain. If it can be construed as conferring upon a corporation of one State the right in another State to do certain acts and enjoy certain privileges in connection with that domain, the indispensable condition is necessarily implied, that, by an enabling statute of such other State, the requisite capacity to do the acts or enjoy the privileges within her limits has been, or will be, bestowed on the corporation. It does not, proprio vigore, enlarge the corporate powers of any company, or authorize it to exercise them in a foreign jurisdiction. If it attempted to do so, it would, to that extent, be clearly void, as an assumption of a power which has been wisely and to the fullest extent lodged with the respective States.

But if the appellee was a Florida corporation, clothed with undisputed authority to establish and work its lines within the county of Escambia, the act would give her-what is not here in issue-a right of way only over the public domain. Congress did not possess, and could not grant, more. The United States acquires no proprietary interest in any railroad by declaring it a post-road. Dickey v. Maysville & Lexington Turnpike Road Co., 7 Dana (Ky.), 113. The only objects thereby attained or sought are the security of the mail and protection of the postal service.

Mr. Perry Belmont, contra.

Telegraphing, as practised by the respondent, is a part of that intercourse which constitutes commerce.

Restrictions upon the free right to erect and maintain telegraph lines operate to regulate that intercourse.

Such restrictions, when imposed by State authority, are void, as contravening the Constitution of the United States.

The act of the legislature of Florida, approved Dec. 11, 1866, relied on by the appellant, not only trespasses upon the domain of Congress, but assumes to forbid what that body has authorized.

The question concerning the power of Congress to enable a corporation to exercise its franchises in a State other than that which created it, is not necessarily involved in determining the rights of the parties. The appellee is exercising certain franchises which the Pensacola and Louisville Railroad Company, pursuant to a statute of Florida, transferred to it by an assignment, which, except within the territory in question, it must be conceded, was as valid and effectual in vesting them as if they had been immediately derived from a legislative grant. The landed proprietors have granted to it the right of occupancy. It is, therefore, lawfully in that State, and has established connections there with its lines coming from other States. The case, therefore, turns upon the single point, whether, after complying with the conditions and regulations imposed by Congress, such a company so carrying on a commercial business may, with all its foreign and internal connections, be excluded, at the instance of another corporation, from certain portions of the State.

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


text: Talk:Pensacola Telegraph Company v. Western Union Telegraph Company


text:
Pensacola Telegraph Company v. Western Union Telegraph Company/Opinion of the Court

Congress has power 'to regulate commerce with foreign nations and among the several States' (Const. art. 1, sect. 8, par. 3); and 'to establish post-offices and post-roads' (id., par. 7). The Constitution of the United States and the laws made in pursuance thereof are the supreme law of the land. Art. 6, par. 2. A law of Congress made in pursuance of the Constitution suspends or overrides all State statutes with which it is in conflict.

Since the case of Gibbons v. Ogden (9 Wheat. 1), it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of Congress. Post-offices and post-roads are established to facilitate the transmission of intelligence. Both commerce and the postal service are placed within the power of Congress, because, being national in their operation, they should be under the protecting care of the national government.

The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress oif the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.

The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the habits of business, and become one of the necessities of commerce. It is indispensable as a means of inter-communication, but especially is it so in commercial transactions. The statistics of the business before the recent reduction in rates show that more than eighty per cent of all the messages sent by telegraph related to commerce. Goods are sold and money paid upon telegraphic orders. Contracts are made by telegraphic correspondence, cargoes secured, and the movement of ships directed. The telegraphic announcement of the markets abroad regulates prices at home, and a prudent merchant rarely enters upon an important transaction without using the telegraph freely to secure information.

It is not only important to the people, but to the government. By means of it the heads of the departments in Washington are kept in close communication with all their various agencies at home and abroad, and can know at almost any hour, by inquiry, what is transpiring any where that affects the interest they have in charge. Under such circumstances, it cannot for a moment be doubted that this powerful agency of commerce and intercommunication comes within the controlling power of Congress, certainly as against hostile State legislation. In fact, from the beginning, it seems to have been assumed that Congress might aid in developing the system; for the first telegraph line of any considerable extent ever erected was built between Washington and Baltimore, only a little more than thirty years ago, with money appropriated by Congress for that purpose (5 Stat. 618); and large donations of land and money have since been made to aid in the construction of other lines (12 id. 489, 772; 13 id. 365; 14 id. 292). It is not necessary now to inquire whether Congress may assume the telegraph as part of the postal service, and exclude all others from its use. The present case is satisfied, if we find that Congress has power, by appropriate legislation, to prevent the States from placing obstructions in the way of its usefulness.

The government of the United States, within the scope of its powers, operates upon every foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by State lines. Its peculiar duty is to protect one part of the country from encroachments by another upon the national rights which belong to all.

The State of Florida has attempted to confer upon a single corporation the exclusive right of transmitting intelligence by telegraph over a certain portion of its territory. This embraces the two westernmost counties of the State, and extends from Alabama to the Gulf. No telegraph line can cross the State from east to west, or from north to south, within these counties, except it passes over this territory. Within it is situated an important seaport, at which business centres, and with which those engaged in commercial pursuits have occasion more or less to communicate. The United States have there also the necessary machinery of the national government. They have a navyyard, forts, custom-houses, courts, post-offices, and the appropriate officers for the enforcement of the laws. The legislation of Florida, if sustained, excludes all commercial intercourse by telegraph between the citizens of the other States and those residing upon this territory, except by the employment of this corporation. The United States cannot communicate with their own officers by telegraph except in the same way. The State, therefore, clearly has attempted to regulate commercial intercourse between its citizens and those of other States, and to control the transmission of all telegraphic correspondence within its own jurisdiction.

It is unnecessary to decide how far this might have been done if Congress had not acted upon the same subject, for it has acted. The statute of July 24, 1866, in effect, amounts to a prohibition of all State monopolies in this particular. It substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the national government for this national privilege. To this extent, certainly, the statute is a legitimate regulation of commercial intercourse among the States, and is appropriate legislation to carry into execution the powers of Congress over the postal service. It gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide, that, whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of post-roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.

It is insisted, however, that the statute extends only to such military and post roads as are upon the public domain; but this, we think, is not so. The language is, 'Through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States.' There is nothing to indicate an intention of limiting the effect of the words employed, and they are, therefore, to be given their natural and ordinary signification. Read in this way, the grant evidently extends to the public domain, the military and post roads, and the navigable waters of the United States. These are all within the dominion of the national government to the extent of the national powers, and are, therefore, subject to legitimate congressional regulation. No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted.

The State law in question, so far as it confers exclusive rights upon the Pensacola Company, is certainly in conflict with this legislation of Congress. To that extent it is, therefore, inoperative as against a corporation of another State entitled to the privileges of the act of Congress. Such being the case, the charter of the Pensacola Company does not exclude the Western Union Company from the occupancy of the right of way of the Pensacola and Louisville Railroad Company under the arrangement made for that purpose.

We are aware that, in Paul v. Virginia (8 Wall. 168), this court decided that a State might exclude a corporation of another State from its jurisdiction, and that corporations are not within the clause of the Constitution which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' Art. 4, sect. 2. That was not, however, the case of a corporation engaged in inter-state commerce; and enough was said by the court to show, that, if it had been, very different questions would have been presented. The language of the opinion is: 'It is undoubtedly true, as stated by counsel, that the power conferred upon Congress to regulate commerce includes as well commerce carried on by corporations as commerce carried on by individuals. . . . This state of facts forbids the supposition that it was intended in the grant of power to Congress to exclude from its control the commerce of corporations. The language of the grant makes no reference to the instrumentalities by which commerce may be carried on: it is general, and includes alike commerce by individuals, partnerships, associations, and corporations. . . . The defect of the argument lies in the character of their (insurance companies) business. Issuing a policy of insurance is not a transaction of commerce. . . . Such contracts (policies of insurance) are not inter-state transactions, though the parties are domiciled in different States.'

The questions thus suggested need not be considered now, because no prohibitory legislation is relied upon, except that which, as has already been seen, is inoperative. Upon principles of comity, the corporations of one State are permitted to do business in another, unless it conflicts with the law, or unjustly interferes with the rights of the citizens of the State into which they come. Under such circumstances, no citizen of a State can enjoin a foreign corporation from pursuing its business. Until the State acts in its sovereign capacity, individual citizens cannot complain. The State must determine for itself when the public good requires that its implied assent to the admission shall be withdrawn. Here, so far from withdrawing its assent, the State, by its legislation of 1874, in effect, invited foreign telegraph corporations to come in. Whether that legislation, in the absence of congressional action, would have been sufficient to authorize a foreign corporation to construct and operate a line within the two counties named, we need not decide; but we are clearly of the opinion, that, with such action and a right of way secured by private arrangement with the owner of the land, this defendant corporation cannot be excluded by the present complainant.

Decree affirmed.

MR. JUSTICE HARLAN did not sit in this case, nor take any part in deciding it.


text: Talk:Pensacola Telegraph Company v. Western Union Telegraph Company/Opinion of the Court


text:
Jones v. United States (96 U.S. 24)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. James Lowndes, for the appellant.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Jones v. United States (96 U.S. 24)


text: Talk:Jones v. United States (96 U.S. 24)


text:
Jones v. United States (96 U.S. 24)/Opinion of the Court

Time is usually of the essence of an executory contract for the sale and subsequent delivery of goods, where no right of property in the same passes by the bargain from the vendor to the purchaser; and the rule in such a case is, that the purchaser is not bound to accept and pay for the goods, unless the same are delivered or tendered on the day specified in the contract. Addison, Contr. 185; Gath v. Lees, 3 H. & C. 558; Coddington v. Paleologo, Law Rep. 2 Exch. 196.

Articles of agreement were made June 1, 1864, between an assistant-quartermaster of the army and the petitioner, who contracted to manufacture and deliver at the clothing depot of the army in Cincinnati, by or before the 15th of December then next, two hundred thousand yards of drak-blue uniform-cloth; and it was agreed that deliveries under the contract should be made as follows: five thousand yards in June, twenty-five thousand yards in July, twenty-five thousand yards in August, thirty-five thousand yards in September, fifty thousand yards in October, fifty thousand yards in November, and ten thousand yards on or before the 15th of December in the same year.

Other persons were interested with him in the contract at the time it was made; but one after another retired, until the petitioner is the only one that retains any interest. His claim is fully set forth in his petition.

Certain instalments of the cloth were delivered, for which the United States paid the contract price, excepting ten per cent reserved by the United States, pursuant to the written contract. Neither party complains of any default prior to August of that year, when the mill in which the cloths were manufactured was destroyed by fire, and the petitioner, in consequence of the loss, failed to make the deliveries of the cloth as the contract required; and the assistant-quartermaster called his attention to the fact, and notified the sureties that he should proceed against their principal for his delinquency.

Unable to fulfil the terms of the contract, he applied by letter to the person in charge of the depot to be released from the obligation, and for the payment of the reserved ten per cent. Being unsuccessful in that application, he visited Washington, for the purpose of applying to the department to be released from the unfinished part of his contract; and with that view sought an interview with the quartermaster-general, who referred him to the head of the bureau of clothing, where he was told that there was no power out of Congress to release him, and that he must furnish the goods. Had the conversation between the parties stopped there, the case would be destitute of any color of equity; but the finding of the court below shows that the head of the bureau remarked, that, upon application to the assistant-quartermaster, sufficient time would be allowed to deliver the goods.

Though told that there was no power out of Congress to release him from his contract, he procured the necessary quantity of such cloth to be manufactured, and applied by letter to the assistant-quartermaster for leave to complete the contract, who referred the letter to the quartermaster-general for decision; and his reply to the petitioner, as given in the findings, was, that he could not authorize the release from contracts, nor the extension of time for the delivery of articles under a contract, nor any action whatever not in accordance with their terms and conditions.

Prices in the market fell one-half; but the petitioner tendered the cloths to the assistant-quartermaster, who refused to receive the same, because the time for deliveries under the contract had passed.

Damages are claimed by the petitioner, upon the ground that the time for the delivery of the cloths, as specified in the contract, was extended: but the Court of Claims decided that the theory of fact involved in the defence was not proved; that the remarks of the head of the bureau of clothing were not sufficient to support that theory, as they might not imply any thing more than the opinion of that officer as to what the assistant-quartermaster would do.

The petition having been dismissed, due appeal was taken by the petitioner; and he assigns the following errors: 1. That the court erred in holding that time was of the essence of the written contract. 2. That the court erred in deciding that there was not a valid extension as to the time for delivering the cloths. 3. That the court erred in overruling the proposition of the petitioner, that the United States were estopped from denying the existence of the contract when the goods were tendered. 4. That the court erred in holding that there was not a new contract, and that such new contract was void because not in writing.

Whether one promise be the consideration for another, or whether the performance, and not the mere promise, be the consideration, is to be determined by the intention and meaning of the parties, as collected from the instrument, and the application of good sense and right reason to each particular case. Instructive rules for the accomplishment of that purpose have been stated in various decisions of the court and in treatises of high authority, some few of which may be consulted in this case to advantage. Chitty, Contr. 668.

Where an act is to be performed by the plaintiff before the accruing of the defendant's liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfil the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. For, where the right to demand the performance of a certain act depends on the execution by the promisee of a condition precedent or prior act, it is clear that the readiness and offer of the latter to fulfil the condition, and the hindrance of its performance by the promisor, are in law equivalent to the completion of the condition precedent, and will render the promisor liable upon his contract. Graves v. Legg, 9 Exch. 709; Morton v. Lamb, 7 Term, 125; 2 Wms. Saund. 352 b; 2 Smith, Lead. Cas. 13.

Well-considered authorities everywhere agree that a contract may be so framed that the promises upon one side may be dependent upon the promises upon the other; so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to perform, his own stipulations, which are a condition precedent to his right of action: nor is it necessary to enter into much discussion in this case to prove that the described instalments of clothing were required, by the true intent and meaning of the parties, as expressed in the written contract, to be delivered at the time and place therein specified and set forth, as the manifest purpose and object of the contract was to procure necessary supplies of clothing for an army in the field.

None will pretend that any right of property in the clothing passed to the United States by the bargain between the parties; and the rule in such cases is, that time is and will be of the essence of the contract, so long as the contract remains executory, and that the purchaser will not be bound to accept and pay for the goods, if they are not delivered or tendered on the day specified in the contract. Addison, Contr. 185.

Suppose that is so, still it is contended by the petitioner that the time of performance was extended by the remarks of the head of the bureau of clothing when the contractor applied to be released from the obligation to complete the unfinished part of his contract; but the court is unable to concur in that proposition. The finding of the court below shows that no such extension was ever made.

Conditions precedent may doubtless be waived by the party in whose favor they are made; but the findings of the court below do not afford any ground to support any such theory. Cases arise where either party, in case of a breach of the contract, may be compensated in damages; and in such cases it is usually held that the conditions are mutual and independent: but where the conditions are dependent and of the essence of the contract, it is everywhere held that the performance of one depends on the performance of another, in which case the rule is universal, that, until the prior condition is performed, the other party is not liable to an action on the contract. Addison, Contr. 925.

Where time is of the essence of the contract, there can be no recovery at law in case of failure to perform within the time stipulated. Slater v. Emerson, 19 How. 224.

Additional authorities to show that a party bound to perform a condition precedent cannot sue on the contract without proof that he has performed that condition, is scarcely necessary, as the principle has become elementary. Governeur v. Tillotson, 3 Edw. (N. Y.) Ch. 348.

Conditions, says Story, may be either precedent or subsequent, but a condition precedent is one which must happen before either party becomes bound by the contract. Thus, if a person agrees to purchase a cargo of a certain ship at sea, provided the cargo proves to be of a particular quality, or provided the ship arrives before a certain time, or at a particular port, each proviso is a condition precedent to the performance of such a contract; and unless the cargo proves to be of the stipulated quality, or the ship arrives within the agreed time or at the specified port, no contract can possibly arise. Story, Contr. 33.

Impossible conditions cannot be performed; and if a person contracts to do what at the time is absolutely impossible, the contract will not bind him, because no man can be obliged to perform an impossibility; but where the contract is to do a thing which is possible in itself, the performance is not excused by the occurrence of an inevitable accident or other contingency, although it was not foreseen by the party, nor was within his control. Chitty, Contr. 663; Jervis v. Tompkinson, 1 H. & N. 208.

Other defences failing, the petitioner insists that the United States are estopped to deny that the time of performance was extended, as set up in his second assignment of error; but the court is unable to sustain that proposition, as the remark of the head of the bureau does not amount to a contract for such an extension, being nothing more than the expression of an opinion that the assistant-quartermaster would grant the applicant some indulgence.

Viewed in that light, it is clear that the United States did not do any thing to warrant the contractor in changing his position, and, if not, then it is settled law that the principle of estoppel does not apply. Packard v. Sears, 8 Ad. & E. 474; Freeman v. Cook, 2 Exch. 654; Foster v. Dawber, 6 id. 854; Edwards v. Chapman, 1 Mee. & W. 231; Swain v. Seamens, 9 Wall. 254.

Estoppel does not arise in such a case, unless the party for whom the service is to be performed induced the other party by some means to change his position and act to his prejudice in consequence of the inducement; but in the case before the court, the remark made by the head of the bureau was not of a character to warrant the petitioner to assume that it was agreed that any such indulgence would be given. Benjamin, Sales, 45; United States v. Shaw, 1 Cliff. 310.

Conclusive evidence that the time of performance had expired is found in the findings of the court, and the petitioner failing to establish his theory that the time of performance had been extended, it is clear that there is no error in the record.

Judgment affirmed.


text: Talk:Jones v. United States (96 U.S. 24)/Opinion of the Court