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City of Providence v. Clapp/Opinion of the Court

This is a writ of error to the circuit court of the United States for the district of Rhode Island.

The suit was brought in the court below against the city of Providence, to recover damages for an injury occasioned by an obstruction on the side-walk in one of its principal streets. The obstruction consisted of a ridge hard-trodden snow and ice on the centre of the side-walk, along which the plaintiff was passing in the night time, and by means of which he fell across the ridge, breaking his thigh-bone in an oblique direction.

After the evidence closed, the counsel for the defendants prayed the court to charge the jury that the statutes of Rhode Island, requiring highways to be kipt in repair, and amended from time to time, so that the same may be safe and convenient for travellers at all seasons of the year, as far as respected obstructions from falls of snow, merely required that the snow should be trodden down or removed, so that the highways should not be blocked up or incumbered with snow; but did not require that said highways should be free from snow or ice, so that the traveller should not be in danger of slipping thereon; and that the said snow being so trodden down and hardened into ice, and the side-walk not blocked up or incumbered therewith, but open and passable in the sense of the statute, in this case the defendants were not liable.

The counsel for the defendants, also, after referring to the statutes authorizing the city of Providence to build and repair side-walks, and also to the ordinances of the city passed in pursuance thereof, further prayed the court to charge, that neither the said statutes nor the ordinances defined or enlarged the duty or liability of the city as to the removal of snow from the side-walks, beyond that under the general statute of the State, nor were they evidence of the degree of care required of the city by the general statute; but that, notwithstanding the same, the city would not be liable under the general law, if the snow on the side-walk was trodden down so as to be open and passable.

The court refused so to charge; but charged, that, by the statute law of the State, the city was obliged to keep this street conveniently and safely passable at all seasons of the year; that, by a special act, the legislature having authorized the city to have side-walks designed for foot passengers, it was bound to keep those side-walks convenient and safe for pedestrians; that the law did not require absolute convenience or safety, but safety and convenience in a reasonable degree, having reference to the uses of the way and frequency of its uses; that, when a fall of snow takes place, so as to render a side-walk not conveniently and safely passable, it was the duty of the city to use ordinary care and diligence to restore it to a reasonably safe and convenient state. That the law does not prescribe how this shall be done, whether by treading down or removing the snow; and that it was for the jury to find, as matter of fact, whether the side-walk, at the time in question, was in a reasonably safe and convenient state, having reference to its uses; and if it was not so, whether its want of safety and convenience was owing to the want of ordinary care and diligence on the part of the city; and in considering whether due diligence required the city to remove the snow, the jury ought to take into consideration the ordinances, not as prescribing a rule binding on the city, but as evidence of the fact that a removal, and not a treading down of the snow, was reasonably necessary.

The 1st section of the statute of Rhode Island concerning highways and bridges, provides, 'that all highways, town-ways, and causeways, &c., lying and being within the bounds of any town, shall be kept in repair and amended, from time to time, so that the same may be safe and convenient for travellers, with their teams, &c.,' at all seasons of the year, at the proper charge and expense of such town, under the care and direction of the surveyor or surveyors of highways appointed by law. The surveyors are then authorized to remove all sorts of obstructions or things that shall in any way straiten, hinder, or incommode any highway or town-way, and when blocked up or incumbered with snow, they shall cause so much thereof to be removed or trod down as will render the road passable.

Among other provisions conferring upon the towns power to repair and amend the public highways, the 4th section enacts that each town, at some public meeting of the electors, shall vote and raise such sum of money, to be expended in labor and materials on the highways, as they may deem necessary for that purpose; and either the assessors or the town council, as the town may direct, shall assess the same on the ratable estate of the inhabitants, and all others owning ratable property therein, as other town taxes are by law assessed.

And the 13th section provides that if the town shall neglect to keep in good repair its highways and bridges, she shall be liable to indictment, and 'shall also be liable to all persons who may in anywise suffer injury to their persons or property by reason of any such neglect.'

It is admitted that the defendants are not liable for the injury complained of at common law, but that the plaintiff must bring the case within the above statute to sustain the action. It must also be admitted, that the act applies to cities as well as towns, and also to side-walks where they constitute a part of the public highway. This has been repeatedly held by the state courts in several States, under statutes substantially like the one under consideration. 13 Pick. 343; 13 Met. 297; 3 Cush. 121, 174; 4 Ib. 247; 6 Ib. 141, 524; 7 Greenl. 442; 15 Verm. 708; 19 Ib. 470; 21 Ib. 391; 2 N. Hamp. 392; 35 Maine, 100; Ib. 242.

The counsel for the defendants, conceding this view of the statute, and of the liability of the city generally, contends that, as it respects obstructions or impediments occasioned by the fall of snow, and accumulations of ice, the liability is qualified, and exists only in case of neglect to tread down or remove the snow, so that the track be not blocked up and incumbered thereby; and that, if the street or side-walk is passable by not being blocked up and incumbered with snow, as it respects this kind of obstruction, it is made safe and convenient within the meaning of the statute. And the latter clause of the 1st section of the act which directs that when the highways are blocked up or incumbered with snow, the surveyor shall cause so much thereof to be removed or trod down as will render the road passable; and also the 13th and 14th sections, which authorize the towns to impose penalties for the removal of snow from highways, and subjects the town to an indictment for neglect therein, are referred to as countenancing this modified liability.

But it will be found, on looking into the several decisions under a similar act in Massachusetts, that no distinction exists between obstructions of a public highway by falls of snow, and those of any other description. In the case of Loker v. Brook-line, 13 Pick. 346, 347, Morton, J., speaking of the 1st section of the statute, observes, that language so general and explicit cannot be misunderstood or restrained. It must extend to all kinds of defects, as well as to all seasons of the year; and an obstruction caused by snow is as clearly included as one caused by flood, or tempest, or any other source of injury. See also, 13 Met. 297; 6 Cush. 141.

The foundation of the action rests mainly on the 1st and 13th sections of the statute. The 1st imposes upon the town the duty of keeping in repair and amending the highways within its limits, so that the same may be safe and convenient for travellers at all seasons of the year; and the 13th declares, that if the towns shall neglect to keep in good repair its highways and bridges, it shall be liable to indictment, and shall also 'be liable to all persons who may in anywise suffer injury to their persons or property by reason of any such neglect.'

The other provisions, and among them those referred to by the counsel, relate to the powers conferred upon the towns to enable them to fulfil the obligations enjoined, and to the powers and duties of the several officers having charge of the repairs of the highways. Ample means are furnished the several towns to discharge their obligations under the statute.

The act of 1821, amended by the act of 1841, confers powers upon the city of Providence, to build and keep in repair their side-walks, at the expense of the owners of the adjoining lots; and as may be seen from the several ordinances of the city, given in evidence, these powers have been liberally exercised for the purpose.

The powers of the towns and of the city are as ample for the purpose of removing obstructions from the highways, streets, and side-walks, arising from falls of snow and accumulations of ice, as those arising from any other cause; and the reason for the removal, so that they may by safe and convenient for travellers, is the same in the one case as in the others. The 13th section of the act which gives the personal remedy, makes no distinction in the two cases; and, in the absence of some plain distinction pointed out by the statute, it would be exceedingly difficult, if not impossible, to state one. It is conceded that an obstruction from falls of snow or accumulations of ice must be removed by the towns and cities, so as to make the highways and streets passable; and that this is a duty expressly enjoined upon them. The question is, what sort of removal will satisfy the requirement of the statute? It is admitted that, as it respects every other species of obstruction, the repairs must be such that the highways and streets may be safe and convenient for travellers; and that this is a question of fact to be determined by the jury. Is an obstruction by snow or ice to be determined by any other rule, or by any other tribunal? The counsel for the defendants suggests, that as it respects such safety and convenience of travellers in case of falls of snow, the statute should be construed as meaning merely that the snow should be trodden down or removed, as that the highways and streets should not be so blocked up or incumbered as not to be safely and conveniently open and passable. But it is quite clear that this would be a very indefinite and uncertain rule to guide either the officers, whose duty it is to remove these obstruetions, or the jury in passing upon them when the subject of legal proceedings. The suggestion may be very well as an argument to the jury, for the purpose of satisfying them that the repairs in the manner mentioned were such as to fulfil the requirement of the statute, but to lay it down as a rule of law in the terms stated, might in many cases, and under the circumstances, fall far short of it.

The treading down of snow when it falls in great depth, or in case of drifts, so that the highway or street shall not be blocked up or incumbered, may in some sense, and for the time being, have the effect to remove the obstruction; but as it respects the side-walks and their uses, this remedy would be, at best, temporary; and, in case of rains or extreme changes of weather, would have the effect to increase rather than remove it. It is but common observation, and knowledge of those familiar with the climate of our northern latitudes, that not unfrequently the most serious obstructions arise from the great depth of snow and changes in the temperature of the weather; and that simply treading down the snow, and leaving it in that condition without further attention, would have the effect to render the highways and side-walks utterly impassable.

In the case also of obstructions from snow, the side-walks may frequently require its removal, so as to make a safe and convenient passage for the pedestrian, when, at the same time, the treading of it down in the street would answer the purpose for the traveller with his team. The nature and extent of the repairs must necessarily depend upon their location and uses; those thronged with travellers may require much greater attention than others less frequented.

The just rule of responsibility, and the one, we think, prescribed by the statute, whether the obstruction be by snow or by any other material, is the removal or abatement so as to render the highway, street, or side-walk, at all times safe and convenient, regard being had to its locality and uses.

We are satisfied the ruling of the court below was correct, and that the judgment should be affirmed.

Mr. Justice DANIEL dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Rhode Island, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs, and interest until paid, at the same rate per annum that similar judgments bear in the courts of the State of Rhode Island.


text: Talk:City of Providence v. Clapp/Opinion of the Court

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text:
Schooner Catharine v. Dickinson

THIS was an appeal in admiralty, from a decree of the circuit court of the United States for the southern district of New York.

It was a case of collision which took place on the 21st of April, 1853, near Squam Beach, between the schooner San Louis, on a voyage from Jersey City to Philadelphia, and the schooner Catharine, bound to New York.

The facts in the case are stated in the opinion of the court.

It was argued by Mr. Cutting, for the appellants, and submitted on a printed argument by Mr. Field, for the appellees.

The points made on behalf of the appellants were:--

1. No proper or sufficient look-out was kept on board of The San Louis; and she neither carried nor showed nay light.

2. Although the witnesses on board of The San Louis contradict each other in the most material facts, the conclusion from all the evidence is, that the man at the wheel, instead of keeping his course, or keeping away, undertook to cross the bows of The Catharine; whatever may have been his object, he improperly luffed, and brought The San Louis into the wind, directly athwart the bows of The Catharine, and thus produced the collision.

3. The Catharine was in the act of reefing, and had the lookout usual in that trade when reducing sail.

4. The rule of damages is erroneous. The Catharine was liable, in rem, for the damage directly occasioned by the collision. Instead of being condemned for the expenses of getting The San Louis afloat, and the cost of repairs, she is charged with the full value of The San Louis, less only a trifling sum, for which her owners, without notice to the appellants, sold and transferred her.

Mr. Field made the following points:--

I. It is established by the proofs, that The San Louis was sailing down the coast closehauled to the wind, having her starboard tacks on board, and that The Catharine was at the leeward, coming up the coast, with the wind free, having her larboard tacks on board; that The Catharine had no look-out; that her crew were engaged in reefing, and had been engaged for twenty minutes or half an hour, during which time the look-out was not kept; that the captain took the wheel at eight o'clock, but left it alone once or twice; that the course of The San Louis was not changed until the collision was inevitable, when the mate put the wheel down, hoping to lessen the blow, but the time was too short for the vessel to feel the change; that the course of The Catharine was changed, so as to bring her head more towards the shore, and that she then ran into and destroyed The San Louis.

II. When one vessel runs into another, the presumption is that the colliding vessel is in fault.

III. In this case, not only is this presumption not repelled, but there are several other reasons positively shown, why The Catharine and her master should be held responsible for the collision.

1. She had the wind free, and her larboard tacks on board, and according to well settled rules, should have given way for The San Louis, which was closehauled, and had her starboard tacks on board. If The Catharine had then given way, the collision would not have happened. St. John v. Paine, 10 How. 581.

2. Even if the Catharine had kept on her course, the collision would not have happened; but her course being altered by heading more towards the shore, she struck The San Louis with full head on.

3. If The Catharine had had a look-out, The San Louis would have been seen, (for it is certain that vessels could be seen at least half a mile,) and the collision would not have happened. It is no excuse to say that The Catharine was reefing, and therefore had a right to call away her look-out, for the preponderance of testimony, as well as the dictates of prudence, show that the look-out must be kept even when reefing, especially in a place crowded with vessels; and, besides, The Catharine had no sufficient cause for reefing. The wind did not require it, and she was reefing merely to avoid getting to Sandy Hook before morning.

4. If the master of The Catharine had not left her helm, it is probable the collision would not have happened. To abandon the helm, as he is proved by his own witnesses to have done, once or twice, was an act of inexcusable carelessness.

5. The appellant case assumes certain facts which are entirely unfounded.

IV. Any of the foregoing reasons was sufficient to entitle the libellants to judgment in their favor.

1. The San Louis did not luff 'across The Catharine's bows.' The helm of The San Louis was not put down until the moment before the collision, when it was inevitable that The Catharine would strike her. This is the positive testimony of the mate, Mr. Williams, who held the helm, and who, of course, knew. Mesick was forward, and could not know the fact as accurately as the mate. Besides, Mr. Williams says, The San Louis had scarcely felt the movement of the wheel, when the Catharine struck her. Capt. Goodspeed's evidence refers only to the time when the two vessels were together so completely that they seemed to be but one.

2. The San Louis was not heading off the shore. She was pointing her bows in shore; though she constantly fell off bodily, her head was for the land. It was impossible, therefore, that The Catharine should get round to her starboard side. If The San Louis had pointed her bows off the shore, she would have had the wind abeam. All the testimony shows, that she was closehauled to the wind, and therefore moving on a line forming an acute angle with the line of The Catharine, the angle opening towards the shore.

3. The Catharine was not 'to windward of The San Louis.' The 4th allegation of the libel states that The San Louis was inside of The Catharine at the time of the collision. This is not denied by the answer. And according to the proofs, The San Louis, at 8 o'clock, must have been from half a mile to a mile to the windward of The Catharine.

Mr. Justice NELSON delivered the opinion of the court.

title: Schooner Catharine v. Dickinson


text: Talk:Schooner Catharine v. Dickinson

title: Talk:Schooner Catharine v. Dickinson


text:
Schooner Catharine v. Dickinson/Opinion of the Court

This is an appeal in admiralty from a decree of the circuit court of the United States for the southern district of New York.

The libel charges, that on the night of the 21st April, 1852, the schooner San Louis, laden with a cargo of stone, was sailing down the coast below the bay of New York, bound for Philadelphia, and while off Squam Beach, on the Jersey shore, the schooner Catharine, coming up the coast, bound for the port of New York, then and there with great force and violence ran into and upon her, breaking through her side, so that she soon filled with water, and sunk. That The Catharine had a fair wind and ample sea-room, while The San Louis was beating against the wind, and was inside of The Catharine, and standing off the shore. That The Catharine had no watch or person on the lookout at the time of the collision; and that it was occasioned by the improper and unskilful management of the persons on board engaged in navigating her. That she luffed, and struck the San Louis about midships with head on.

The answer of the respondents, owners of The Catharine, admit The San Louis was sailing down the coast at the time and place mentioned; and that The Catharine was coming up the same, bound for the port of New York; but deny that she ran into The San Louis; but charge that she ran across and afoul of the bows of The Catharine, which occasioned the collision; that the wind was in a quarter that enabled The San Louis to keep her course full down the coast without keeping off shore; they insist that The Catharine had the usual watch set before and at the time of the collision; and they deny that it was occasioned by reason of the unskilfulness or mismanagement of those on board of her, but was the result of want of care and mismanagement in navigating The San Louis. They deny that The Catharine luffed, as charged in the libel; but charge that The San Louis luffed and came across the bows of The Catharine.

The district court rendered a decree for the libellants, and referred the question of damages to a commissioner. The decree was affirmed in the circuit court. The proofs before the commissioner to ascertain the amount of the damages, consisted principally of testimony as to the value of The San Louis previous to the collision; and as to her estimated value in her sunken and disabled condition in the water on the beach; the difference constituting the measure of damages allowed. She was sold by one of the owners, a few days after the accident, while lying on the beach, for $140; and which, upon the weight of the proofs as produced, was her then estimated worth. Her cargo of stone was afterwards taken out, and the vessel raised and brought to the port of New York and repaired. The expense of raising and repairing her seems not to have been a subject of inquiry.

The commissioner reported damages to the amount of $6,200, which report was confirmed.

1. As to the damages.

The principle that appears to have governed in the examination of the witness in respect to this branch of the case, as well as the commissioner in arriving at the amount of damages reported to the court, we think, upon consideration, is not maintainable. That principle seems to have been, to ascertain from the opinion of witnesses, experts as they are called, though it is not clear they were of that character, the value of the vessel in her sunken and disabled condition as she lay on the beach after the disaster, and to deduct that sum from the sound value before it occurred, the difference being the measure of the damage; in other words, that the inquiry must be confined to the condition of the vessel at the time of the collision, and in her then state; that the owner had a right to abandon her as a total loss, and look to the wrongdoer for compensation, as then estimated. Acting upon this view, the libellants sold the vessel in her disabled state for what they could get, and claimed, and have received, the sound value, less this amount.

It is true, that where a vessel has been run down and abandoned, never having been raised and repaired, but left to decay upon the beach, evidence of the nature and character of that given in this case must necessarily be admissible. That is, the damage sustained must be ascertained by the testimony of witnesses experienced in matters of this kind, who are competent to speak as to the practicability of raising and repairing the vessel, and of the expense attendant thereupon, this expense constituting the principal ingredient of the damage proper to be allowed; but they should be witnesses whose occupations and experience enabled them to express opinions of the feasibility of raising the vessel, and to make estimates of the probable expense of the same; and, also, of the expense of the necessary repairs, upon which the court might rely with some confidence in making up its judgment. Loose general opinions on the subject, entitled to very little more respect in the ascertainment of facts than the conjectures of witnesses, are of themselves undeserving of consideration.

But where the vessel has been raised and repaired, or is undergoing repairs, as in the case of The San Louis, there is no necessity for resorting even to the opinion and estimates of experts, as to the probable expenses, for as to these the reasonable expenses incurred in raising and repairing her are matters of fact that may be ascertained from the parties concerned in the work. The libellants, instead of the examination of witnesses, as to their opinion of the amount of the damage from an inspection of the vessel as she lay upon the beach, should have inquired into the actual cost of raising and repairing her, so as to have made her equal to the value before the collision. This would have been the proper mode by which to have arrived at an indemnity to the extent of the loss sustained, which is the true measure of damages in these cases. 13 How. 101, 110.

We think, therefore, that the rule adopted in ascertaining the measures of damages in this case was erroneous.

The next question in the case is more difficult.

The New Jersey coast below Sandy Hook bears southwesterly and northeasterly, along which these vessels were sailing. The wind was southwesterly, with a pretty strong breeze; The San Louis closehauled, passing down the coast, and The Catharine with the wind free passing up it, making for the Hook. There had been a fall of rain during the evening, but between eight and nine o'clock, when the collision happened, the weather had partially cleared up. The night was cloudy, but some stars were visible. The San Louis was sailing at the rate of six knots the hour; and as The Catharine had the wind free, her speed must at least have been equal if not greater.

The master of the schooner Goodspeed, which vessel was in company with The San Louis from Jersey City, states that a schooner, which it is admitted was The Catharine, passed him a little after eight o'clock, some quarter of a mile to the windward, heading to the westward of her course to the Hook, which was in shore; that at this time The San Louis was from three quarters to a mile astern of him, a little to windward. The Catharine had a light; the San Louis had not.

Messick, the look-out on The San Louis, states that he saw The Catharine half a mile ahead; he supposes about half a point on their lee bow. 'I suppose,' he says, 'when I first saw The Catharine she was heading to the northward. I sung out to the mate at the helm to luff; he did so, and brought. The San Louis into the wind; that The Catharine then luffed also, and ran into us abaft the chains.'

Now, if the master of The Goodspeed is not mistaken, and he is an indifferent witness, it is difficult readily to assent to the statement of Messick as to the relative position of the two vessels; for if The Catharine passed The Goodspeed half a mile to the windward, and The San Louis was astern, nearly in the track of the latter, it is not very probable that, in the short distance she had to pass in her course before meeting The San Louis, she had so far diverged to the leeward as to overcome this half mile, and to have crossed her track. The vessels must have met at least within half a mile from the point where The Catharine passed The Goodspeed. The master of The Goodspeed says The Catharine was not only half a mile to the windward, but that she was heading to the west of her course to the Hook.

According to the settled rules of navigation, it was the duty of The San Louis, when she first saw The Catharine, which had the wind free, she being closedhauled, to have kept on her course; the manoeuvre of luffing into the wind, as soon as she saw that vessel, was improper, and subjects her to the charge of unskilful navigation, unless justified by special circumstances existing at the time. Here, the circumstances tend rather to aggravate than justify the error, as the improper manoeuvre may have led to the collision, and probably did, if The Catharine at the time was to the windward.

Williams, the mate of The San Louis, who was at the wheel, differs materially in his testimony from Messick. He states, when he first saw The Catharine, 'he spoke to the man at the bow; he said, keep your course, and you will go clear. I did keep my course; asked the man at the bow if he could see her; he said that he could; he told me to keep my course; I did not alter my course; steered as close to the wind as I could; did not see much more of The Catharine till she struck us.' He further states, that when about three rods from The Catharine, she luffed and was coming into them; that he then put his wheel down.

If this account of the management of The San Louis could be confidently relied on, there would be no great difficulty in charging the other vessel with the fault of the collision. But it is admitted that Messick was the proper person, under the circumstances, to give the orders to the mate at the wheel. Williams himself assumes this in his testimony; and Messick is very particular as to the orders given. On his cross examination he says: 'I saw The Catharine across one point of the bowsprit, inside the stays; right away then I gave the mate the order to luff; he did it right away. She minded her helm readily.'

The difference is very material; for whether fault or not is to be imputed to The San Louis, depends upon the fact whether she is chargeable with the manoeuvre testified to by the look-out. We think, under the circumstances in which he was placed, his account of the transaction is entitled to the most weight. Having given the order, and seen that it was obeyed, and being at the time in charge of the navigation of the vessel, he cannot well be mistaken. Even the contradiction between the two witnesses is calculated to cast a doubt over the proper management of the vessel in the emergency.

The order to luff, itself, was a clear violation of the duty of The San Louis; but, in this instance, if the master of The Goodspeed is not mistaken, it probably produced the disaster. As to The Catharine, we are not satisfied that she had a proper lookout on the vessel at the time of the collision. The excuse given is, that all hands, a short time previously, had been called to reef the sails, and some evidence is given to prove that this is customary on vessels of this description. However this may be in the daytime, we think that such custom or usage cannot be permitted as an excuse for dispensing with a proper look-out while navigating in the night, especially on waters frequented by other vessels. Under such circumstances, a competent lookout, stationed upon a quarter of the vessel affording the best opportunity to see at a distance those meeting her, is indispensable to safe navigation, and the neglect is chargeable as a fault in the navigation.

Our opinion therefore is, that the decree below was erroneous, and should be reversed.

Upon this view of the case, it becomes necessary to settle the rule of damages in a case where both vessels are in fault.

The question, we believe, has never until now come distinctly before this court for decision. The rule that prevails in the district and circuit courts, we understand, has been to divide the loss. 9 Law Rep. 30.

This seems now to be the well-settled rule in the English admiralty. Petersfield v. The Judith, Abbot on Sh. 231, 232; The Celt, 3 Hagg. 328, n.; The Washington, 5 Jurist, 1067; The Fiends, 4 E. F. Moore Rep. 314, 322; The Seringapatam, 5 Notes of Cases, 61, 66; Vaux v. Salvador, 4 Ad. and Eli. 431; The Monarch, 1 Wm. Rob. 21; The De Cock, 5 Monthly Law Mag. 303; The Oratava, 5 Ib. 45, 362.

Under the circumstances usually attending these disasters, we think the rule dividing the loss the most just and equitable, and as best tending to induce care and vigilance on both sides, in the navigation.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court for further proceedings to be had therein, in conformity to the opinion of this court, and as to law and justice shall appertain.


text: Talk:Schooner Catharine v. Dickinson/Opinion of the Court


text:
Peck v. Sanderson (58 U.S. 178)

THIS was an appeal from the circuit court of the United States for the eastern district of Pennsylvania.

The circumstances of the case are particularly set forth in the opinion of the court.

It was argued by Mr. Cutting, for the appellants, and submitted, on a printed brief, by Mr. J. Murray Rush, for the appellee.

The arguments of the counsel turned entirely upon questions of fact, as deduced from the evidence in the case. There were no principles of law disputed, and under these circumstances the reporter has deemed it unadvisable to condense the arguments.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Peck v. Sanderson (58 U.S. 178)


text:
Page:Copyright, Its History And Its Law (1912).djvu/174

 known to him as in frequent relation with the Copyright Office. Postage must be prepaid on the signed application, as there is no provision for free transmission through the mails, such as applies to deposit copies. In practice the application with remittance and the deposit copies should be simultaneously sent immediately after publication.

The law provides that deposit copies shall be sent promptly after publication, and that two complete copies of the best edition then published (or one copy in case of a contribution to a periodical or for identification of a work not reproduced for sale) shall be deposited; and if a work is published with notice of copyright, and copies are not promptly deposited, the copyright is voided and the proprietor becomes subject to penalty three months (or in case of outlying possessions or foreign countries six months) after formal demand by the Register of Copyrights for deposit copies. The word "promptly" is indefinite and has been vaguely construed to mean "without unnecessary delay," but this does not mean the very day of publication (C. O. Rule 22). The status of undeposited works published with copyright notice and not formally demanded by the Register of Copyrights, is also not defined by the law. In such case the copyright has not been perfected by the completing act, and it would be impracticable to proceed against an infringer, and the proprietor might be liable to penalty for false notice of copyright. In the event of such a case arising, through carelessness or otherwise, the courts would have to decide the question by definition of the word "promptly" and an interpretation of the implication that copyright is voided, meaning that the right to obtain copyright lapses, if the process is not completed without undue delay.

The deposit copy must be the complete work; a


text: Talk:Peck v. Sanderson (58 U.S. 178)

title: Talk:Peck v. Sanderson (58 U.S. 178)


text:
Peck v. Sanderson (58 U.S. 178)/Opinion of the Court

This case arises out of a collision between the schooner Mission, of Edenton, in North Carolina, and the steam-ship Columbus, of Philadelphia. The schooner sunk immediately, and all on board perished, with the exception of Wilson G. Burgess, a seaman, who succeeded in getting on board of The Columbus. The libel is filed by the owner of the schooner, and charges that the collision was occasioned by the fault of the steam-ship. The circuit court sustained the libel, and directed the respondents to pay the full value of The Mission and her cargo. And from that decree this appeal has been taken.

The only witness examined by the libellant is the seaman above mentioned. It appears from his testimony that the schooner was bound from Rum Key to Edenton, with a cargo of salt and some specie. The crew consisted of the captain, one mate, two able and one ordinary seamen, a cook, and a son of the captain, about twelve years old. About 12 o'clock, on the night of the collision, Burgess, and a seaman named Brown, and the master, came from below, it being their watch on deck. The master soon went below again, and remained there till after the collision, leaving no one on deck but the two seamen. Brown took the wheel and Burgess went forward; and at two o'clock in the morning, Burgess took the wheel and Brown went forward. Burgess states that it was a pretty clear night, with a moderate wind from northwest, the schooner heading north by east. The sails were trimmed flat aft; and the schooner was as closehauled to the wind as she could be. He could see nothing on the larboard side, because the sails intercepted his view. She carried no lights.

He had been at the wheel about half an hour when the collision took place. He heard a heavy crash; the wheel turned, flew out of his hands, and knocked him down. He ran forward, and saw a large vessel into them. Her bowsprit was between the schooner's jib and foremast, and extended over their forecastle deck. He got hold of her bowsprit shroud and got upon her deck. The schooner went down, and the rest of the crew perished.

Burgess states that he neither saw nor heard the steamer until the vessels came together. The Columbus was on the larboard side, and the sails of the schooner prevented him from seeing her. He never saw or heard Brown after he went forward, and he gave the witness no notice of the approach of the steam-ship.

On the part of The Columbus several witnesses were examined, and among them the mate, a seaman stationed on the look-out, and the engineer. There is no material discrepancy in their testimony, and the result of it is this:--

The steam-ship was a propeller, and a regular packet between Philadelphia and Charleston. She was on her voyage from the former place to the latter, with freight and passengers on board.

On the night of the collision, it was the mate's watch, from twelve o'clock to four o'clock in the morning. He came from below at twelve o'clock, and saw that his men were keeping a look-out forward, and was also on the look-out himself. The wind was west-northwest, varying one or two points, and the steamer was heading southwest, and going at the rate of about eight and a half knots an hour. There was a heavy head sea, and the night was starlight, but not very clear, somewhat hazy. The ship carried a signal-light, (a globe lamp,) such as they usually carried, which was burning, and all the state-rooms were lighted. These lights could be seen from a distance, variously estimated by the witnesses from one to five miles. Her usual watch were on deck; two of them stationed on the forecastle deck on the look-out, and the mate was standing on the top of the skylight looking out for Cape Lookout light, the ship being then about ten miles from Cape Lookout breakers, and on soundings.

The Mission was first seen by one of the look-out, who immediately ran aft two or three steps, and sang out, 'vessel right ahead.' She was then at a distance of two or three hundred yards. And on such a night, a vessel like The Mission, with her sails hauled flat aft, and coming towards The Columbus edge on, and without lights, could not be seen at a greater distance.

The mate, as soon as the look-out cried 'sail right ahead,' jumped from the skylight, ordered the engineer to stop the engine, and ran forward. He saw The Mission a point or a point and a half on the larboard bow, apparently standing west by north, distant, as he conjectured, about two hundred yards. He could not see her very plain, her sails being presented to them edgewise. She was rather to windward of the steam-ship, and closehauled. He judged that he could not clear her by shifting the helm, and he ordered the engineer to back. The orders were instantly obeyed, and The Columbus was backing when the collision took place. It took place in less than a minute from the time the schooner was first seen.

The witnesses testify, that when at night the look-out cries out, 'sail ahead,' it is the duty and practice of steam vessels, when they are uncertain of the way the sail is standing, to stop the engine and back; and it is not usual or proper to change her course, before the course which the other vessel is steering is first ascertained. And among the witnesses who thus testify is a seaman who had been a pilot in the Bay of Delaware many years, and who happened to be on board The Columbus as passenger when this disaster happened.

Upon this statement of facts, gathered from the testimony on both sides, we see no just ground for imputing this unfortunate collision to negligence or want of skill in the management of The Columbus. She was well lighted, and could be seen at a great distance. She had a sufficient look-out, properly stationed.

But it is said it was a starlight night, and if the look-out had been watchful, The Mission ought to have been seen at a greater distance. Undoubtedly there are nights in which such a vessel might be seen much further off; and in the night of which we are speaking, she might have been seen at a greater distance, if the whole breadth of her sails had been presented to the approaching vessel. But there are nights which may properly be called starlight, when there is a haze on the surface of the ocean which obstructs the vision. And the court cannot undertake to say, that in any night, whenever the stars are shining, a vessel like The Mission may be seen at a greater distance than two or three hundred yards, although she is approaching head on with her sails drawn flat, and without a light. The distance must depend on the state of the atmosphere, and vary with it. And no one can know or form a safe opinion as to the distance at which the schooner might have been seen, on the night of which we are speaking, unless he was at the place of collision at the time it happened, or derives his knowledge from persons who were there. And when the witnesses on board The Columbus testify that she could not be seen further off, there is no reasonable ground for doubting the truth of their testimony. It is a fact, proved by eye-witnesses, whose testimony is not impeached.

Neither can the order to stop the engine and back, instead of changing the course of the steam-ship, be regarded as a fault. It would evidently have been unwise to change her course, until the course of the approaching vessel was ascertained. She might be approaching at an angle that would clear the steamship, and a change in the course of the latter might produce a collision instead of preventing it. And stopping the engine lessened the rapidity with which the vessels were nearing each other, and gained time, while he was ascertaining the distance of the sail, and the direction in which it was steering. When he had done this, if there was sufficient distance between them to enable him to avoid her, it was unquestionably his duty to change the course of The Columbus, and allow the schooner to pass on, in the course in which she was steering. But, in his judgment, this could not be done.

The testimony shows that he was an experienced and trustworthy seaman. And there is no evidence to impeach the correctness of his opinion in this particular. And if it was impossible to avoid the schooner, by changing the course of his vessel, the order to back was evidently judicious, as it gave more space for the schooner to change her course, and thereby escape the impending danger. Her course could be changed in a much shorter space than that required for a steam-ship of the size of The Columbus.

It is, without doubt, the general rule, that a sailing vessel should keep her course when approaching a steamboat, and it is the duty of the latter to keep out of her way. But this rule presupposes that the steamer discovered, or ought to have discovered, the sailing vessel when at a sufficient distance to avoid her, by changing her own course. But where, as in the present case, they are brought suddenly and unexpectedly close to each other, and the ordinary rules of navigation will not prevent a collision, it is the duty of each to act according to the emergency, and to take any measure that will be most likely to attain the object. Experienced seamen testify that the mode adopted on the part of The Columbus was the usual and best one; and we see no reason to doubt it. And if The Columbus had been seen from The Mission when the engine was stopped, she might, it appears, have passed her in safety. Not a moment appears to have been lost on board of the steamer, in giving or in executing the orders which the occasion called for; and we think she is not, in any degree, responsible for the disaster.

In this view of the case, it is unnecessary to inquire whether any blame can be attached to The Mission. For, whether she was or was not managed unskilfully, or negligently, The Columbus not being in fault, is not liable for any damage sustained by the schooner.

But yet it is evident that there was great negligence on her part. For it is impossible that a vessel, lighted up like the steamer, would not have been seen from the schooner before she actually came in collision, if there had been ordinary care and watchfulness on board. It may indeed have happened that Brown, who went forward as the look-out, fell overboard by some accident, without the knowledge of Burgess, before The Columbus was in sight; and so, the want of a look-out might have been occasioned by misfortune, and not by carelessness. But the conduct of the captain, in going below during his watch, and not remaining on deck to see that the seamen were at their posts and attending to their duty, was hardly consistent with good seamanship. And it is difficult to believe that the approach of the steamer could be unknown to Burgess, who was at the helm, until the actual collision, unless he was asleep at his post. The sails of his vessel might have hid the lights, but it is hardly credible that a wakeful and watchful seaman at the wheel would not have heard the noise of her machinery before he felt the collision. We do not, however, pursue this inquiry, because it is not material to the decision. And as, in the opinion of the court, no fault is imputable to The Columbus, the decree of the circuit court must be reversed, and the libel dismissed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Pennsylvania, and was argued by counsel, On consideration whereof it is now here ordered, adjudged, and decreed by this court that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to dismiss the libel, with costs in that court.


text: Talk:Peck v. Sanderson (58 U.S. 178)/Opinion of the Court


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Iasigi v. Brown

THIS case was brought up by writ of error from the circuit court of the United States for the district of Massachusetts.

The entire history of the case is given in the opinion of the court.

It was argued by Mr. Bartlett, and there was also a printed brief by Mr. Lawrence, for the plaintiffs in error, and by Mr. Lord and Mr. Merwin, for the defendants in error.

The counsel for the plaintiffs in error, made the three following points, of which the reporter has only room to give the argument upon the first.

I. That the rejection of the proffered testimony by the district judge, 'as immaterial, and as insufficient, when taken in connection with the other evidence, to authorize the jury to find a verdict for the plaintiffs,' and his further peremptory directions to the jury, without the consent of plaintiffs, to return their verdict for defendant, was unwarranted by law, and a departure from the practice and principles established by this court, and by the highest local tribunal, for the conducting of trials at Nisi Prius.

II. That if it could be deemed competent and lawful, in any case, to withdraw from the jury the determination of facts, where proofs legally admissible, and having a possible tendency to support the issue, have been introduced or offered, yet having regard to the character of the facts proved and offered for proof in this case, and the nature of the issue, the questions were purely questions for a jury.

III. That if in this case, resting, as it does, on charges of actual and not constructive fraud, involving, as it must, a question of intention, it be in the power of the judge, against the consent of plaintiffs, to determine the value of the testimony, and direct a verdict, (upon the ground that such course is equivalent to a demurrer to evidence,) even then the plaintiffs submit that, tried by the rules pertaining to a demurrer to evidence, the judge erred in directing a verdict for defendant.

1. The first proposition asks the judgment of this court upon a proceeding, not a mere indifferent matter of practice, but one that involves the substantial rights of parties; and that question is, whether in any case, after the introduction or offer of evidence legally competent, and having a bearing on the issue, it is the right of a judge at Nisi Prius, upon his view of the value of the proofs, peremptorily to direct, against plaintiff's consent, a verdict for defendant.

It assumes, what is apparent throughout the opinion of the district judge, that there was evidence to be weighed.

This question is to be determined, as well by the principles heretofore settled by this court, as by the 'modes of proceeding' of the State of Massachusetts, which by the acts of congress of 1789 and 1792 have been adopted into the courts of the United States.

A peremptory direction to a jury to return a verdict for a defendant, after the introduction of evidence competent to sustain the issue, cannot be distinguished in principle, though it differs in form, from an order of nonsuit, and so it has been held. Morgan v. Ide, 8 Cush. 420.

It has been repeatedly settled by this court that it is not in the power of the judge, without the plaintiff's consent, to order a nonsuit. Elmore v. Grymes, 1 Pet. 469; De Wolf v. Rabaud, Ib. 476; Crane v. Morris, 6 Ib. 598; Silsby v. Foote, 14 How. 218.

It has been settled in the same manner in Massachusetts by the latest case directly on the point, and to treated in the local books of practice. Mitchell v. New England Insurance Co. 6 Pick. 117; Colby's Practice, 225.

The ground assigned by this court is as follows: 'The circuit court had no authority to order a peremptory nonsuit, against the will of the plaintiff; he had a right, by law, to a trial by jury, and to have had the case submitted to them.'

The same principle prevails in England. 'It also appears that the plaintiff is in nowise compellable to be nonsuited after he has appeared, and therefore if he insist upon the matter being left to the jury, they must give in their verdict, &c.' 2 Lee's Dict. of Practice in B. R. and C. B., 958.

Such being the principles settled by this court and the state court, as to nonsuits, it remains to inquire what is the doctrine of both as to peremptory instructions to juries to return verdicts as directed, and it is submitted that there are numerous decisions in this court, by which it is settled that where there is any legally competent evidence offered, the case must be submitted to the jury with appropriate instructions. Thus in Greenleaf v. Birth, 9 Pet. 292, the court say, on p. 299: 'Where there is no evidence tending to prove a particular fact, the court are bound so to instruct the jury, when requested: but they cannot legally give any instruction which shall take from the jury the right of weighing the evidence, and determining what effect it shall have.' So in United States v. Laub, 12 Pet. 1, the court say: 'If the court erred in not giving the instructions asked on the part of the plaintiff, it must have been on the ground that no evidence, tending to prove the matter in dispute, had been given to the jury. For it is a point too well settled to be now drawn in question, that the effect and sufficiency of the evidence are for the consideration and determination of the jury; and the error is to be redressed, if at all, by application to the court below for a new trial.' United States v. Laub, 12 Pet. 1, 5.

Again: 'The first prayer of defendants to instruct the jury that upon the whole evidence the plaintiffs ought not to recover, if it might properly have been granted in any case in which any testimony was offered, certainly ought not to have been granted if any possible construction of that testimony would support the action.' Bank of Washington v. Triplett et al. 1 Pet. 25, 31. See also ''Chesapeake Ohio Can. Co. v. Knapp et al.'' 9 Ib. 541, 568; Scott v. Lloyd, 9 Pet. 418, 445; Roach v. Hullings, 16 Ib. 319, 323.

The doctrine of the supreme court of Massachusetts is well established, namely, that the court have merely the power to advise a verdict, even where a verdict, inconsistent with that advice, ought to be set aside. Davis v. Maxwell, 12 Met. 286; Morgan v. Ide, 8 Cush. 420.

If the rule of this court and of the state court be as is contended, it would be decisive of the case, but it is submitted that it is founded on principles essential to the safety of suitors.

It does not exclude the power of the judge to determine the legal competency or admissibility of evidence; but merely of peremptorily deciding as to its weight.

If the verdict be against his advice to the jury, a motion for new trial, see 12 Pet. 1, brings with it an opportunity of careful review-it may be with the aid of his associate-which the rapidity of a trial has not offered.

At all events, peremptory directions to return verdicts, upon the ground that they are analogous to a demurrer to evidence, are fatal to the losing party in a court of error, to which court the appearance, demeanor, and credibility of witnesses can never be transferred, and demurrers to evidence are not encouraged in this court. United States Bank v. Smith, 11 Wheat. 171.

The first two points of the counsel for the defendant in error related to the statute of Massachusetts, which, they contended, was similar to 9 George IV. ch. 14, § 6, called Lord Tenterden's act, the English cases under which were Lyde v. Barnard, 1 Mees. and W. 101; Haslop v. Fergusson, 7 Ad. and Ellis, 86; Swann v. Phillips, 8 Ad. and Ellis, 457; Devaux v. Steinkeller, 6 Bing. N. C. 84.

III. The representation, being now, of necessity, a statutory document, the construction of it belongs to the court.

And this, whether the interpretation is to be made on the paper singly, or on previously existing facts, sometimes to be taken into view, to put the court in the place of the writer in understanding his language.

The question does not become a mixed question of fact and law, unless there be evidence that the language was used in a special or technical sense, or the auxiliary facts be proved by uncertain or conflicting evidence. In the present case there was no evidence of the use of words in any special or technical sense; nor was there any conflict of evidence as to any fact needed in the understanding of the letters. Bell v. Bruen, 1 How. 183; Turner v. Yates, 16 Ib. 23.

IV. The plaintiffs are not entitled to recover, because of the terms of the letter of Mr. Curtis, to which it was a reply.

The letter of Curtis, of April 5, invites a reply, 'to be discreetly used by myself.'

1. It is widely without the statute, to allow the information to be used by another.

If, in Mr. Brown's letter, he had incorporated this phrase, 'my opinion is to be used by yourself only,' it would be no stronger in effect; and to allow a construction of such a letter to embrace all persons to whom it should be shown, could not be done without disregard to the statute, and to common fairness. This would not be to substitute a principal, but would introduce a multitude of strangers.

2. The letter of Mr. Curtis invites information to be 'discreetly used by myself.'

It cannot be that this commits the document to be used at the discretion of all to whom it shall be shown. Written to a discreet man, the reply, true or false, might be very harmless; to an indiscreet man, it might be the reverse. Written to one man, the utmost conceivable credit given on it might not exceed hundreds; to another, it might amount up to hundreds of thousands.

3. Written to Mr. Curtis, it would be limited, in Mr. Brown's understanding, to the use of it only in the business of his agency; operating only on the standing of the parties receiving credits from him, who might deal with the debtors inquired of, and thus be incapable of serious injury; but read by another, acting on his own eagerness or necessities to sell, it might prove ruinous.

4. Founding the action for false representation on the principle of holding a man to the consequences of his statements of credit, fairness requires that such facts should be made known to him as would enable him to see the consequences; and that he should not be held to unknown results which could not have been foreseen without a knowledge which might and ought to have been imparted.

5. The plaintiffs cannot set up that they were unaware of this limitation in the communication to Mr. Brown; the two letters are but one communication, and if they claim it at all, it must be with the limit under which it was obtained.

V. The letter of April 7 was, by its terms, exclusively limited to Mr. Curtis alone, by its being inscribed 'Confidential.'

1. The plain meaning of this word, as applied to a letter, is, that the communication is confided to him to whom it is addressed, and to no other person: 'to be kept in confidence, private; as, a confidential matter.' Webster's Dic.

2. This signification is confirmed, by its being superadded to the words of Mr. Curtis's letter; notwithstanding the promise, that the desired opinion would be discreetly used, and by himself, (which warranted any action in his own dealings,) the additional caution was, that the communication itself should be kept wholly personal between the writer and the addressed party.

The word 'confidential' is not capable of a sense, that permits it not only to be shown to a stranger, or any number of strangers, but to be used by him or them, and in his or their discretion, and acted on by him and them, at any future time, and to an unlimited amount. Such a sense of the word is not shown by any evidence, nor called for by any individual justice in this case, nor by any general principle of policy or justice.

3. The letter of 7th April was also 'confidential,' in consequence of its communications concerning the defendant's own involvements and connection with the parties inquired of.

4. The conduct of Mr. Curtis in submitting the letter to the plaintiff's inspection, on his urgent entreaties, has no bearing on the question. He, in strictness, violated the confidence placed in him; doubtless under the tacit obligation on the part of the plaintiffs to receive it, as he, Curtis, did, only in reference to the existing claims of Iasigi, and to quiet him.

VI. The subsequent letter of Brown, Brothers, and Co., of June 27 has no bearing on the construction of the letter of April 7.

1. It does not in terms, or by implication, refer to it. The phrase 'we continue,' &c., is fully warranted, as to all reference, by a public and general knowledge of the previous friendly relations and dealings of Brown, Brothers, and Co. with the parties referred to.

To introduce a paper by relation into instruments under the statute of frauds, express reference is necessary. Per Mr. Justice Nelson, Salmon Falls Manufacturing Co. v. Goddard, 14 How. 456, and cases cited there.

title: Iasigi v. Brown


text: Talk:Iasigi v. Brown

title: Talk:Iasigi v. Brown


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Iasigi v. Brown/Opinion of the Court

2. The letter referred to that of Curtis of 26th June, who said: 'I replied, that I believed you thought favorably of the concern,' (p. 7,) showing nothing as to having exhibited the previous letter to any one.

VII. The conversations in October and January following, cannot be used in the interpretation of the letter of 7th April.

1. The conversation of January, spoken of by Mr. Grant, (p. 13,) was in relation to his own sales, which he says were made on the faith of the letters (meaning both); whereas he states: 'I never saw the letter till after the failure, but got its contents from Mr. Iasigi.' P. 13.

Mr. Iasigi's statement of the contents cannot be the basis of any inferences within the statute. Nor does any thing appear to have been said in this conversation as to any right in Mr. Curtis to exhibit the first letter.

2. The conversation of October 15 is wholly inadmissible, under the statute of frauds of Massachusetts. It consists of very loose oral evidence, not distinguishing what was said by the two Messrs. Brown; it was given, in order to render a letter, which was in its terms confidential, in effect public, with the widest and most indefinite responsibility. This would defeat the statute in the most palpable manner.

3. Again: It seeks to involve the defendant in a responsibility for the first letter, because he or his partner declared that it was a 'guarded' letter. This is not only giving oral evidence to vary the writing, but adds to it the remoteness of an insufficient inference from the oral evidence.

4. Again: Its being a guarded letter, had reference to its effect on Mr. Curtis himself, and by no necessity implied guarded as to others, who, by its being confidential, were not expected to see it.

5. Again: It is attempted to argue, from the silence by Messrs. Brown, in reference to the exhibition of the letter by Mr. Curtis, that he had originally intended it. But this is giving in evidence mere silence, in order to extend the effect of a statutory document.

6. But lastly: The purpose and object of this conversation was to press a supposed moral right in these gentlemen, Iasigi, Grant, and Kendall, to share in an attachment made by Messrs. Brown, and not at all to discuss their liability at law on the letters in question.

VIII. The offers of proof, tending to show the facts stated in the letter of April 7 false and suppressive, were wholly insufficient and inadmissible.

1. Supposing such evidence given, it would have been no warrant to impute an intent, that the letter should be shown, much less would it tend to enlarge or contradict its language.

2. The evidence seeks to contradict the effect of a writing by oral evidence, that it would have effected frauds if its terms were disregarded.

3. The evidence offered seeks to reverse the policy of the statute. This policy was to shield all men from charges of fraud, without a writing to be falsified. The offers attempt first to try the man for fraud, and thence to imply a sufficient representation.

Last. It was the duty of the judge to have directed the jury to bring in a verdict for the defendants. Parks v. Ross, 11 How. 372.

Mr. Justice McLEAN delivered the opinion of the court.

This case is brought before us by a writ of error to the circuit court of the United States for the district of Massachusetts.

The plaintiffs are merchants in Boston, and deal largely in wool, and, prior to the 4th of April, 1851, sold, occasionally, to two corporations in the State of Connecticut, called the Thompsonville Company and the Tariffville Company, and received therefor their notes, indorsed by Orrin Thompson. And, with the view of making further sales to them, having become doubtful of their pecuniary means and ability to make payment in future, the plaintiffs applied to Thomas B. Curtis, of Boston, the agent of defendant, to ascertain his opinion as to any possibility of loss, by selling largely on credit to said corporations or to Thompson; the plaintiffs knowing that the defendant was friendly to the companies, and intimately acquainted with their pecuniary condition.

A letter was written to defendant, by his agent, Curtis; and an answer was received, as alleged in the declaration of the plaintiffs, which induced them to give large credits to the two companies and Orrin Thompson, when, at the time, they were insolvent, which fact was known to the defendant.

The points in the case are stated in the bill of exceptions, and arise on the construction of the above letter and one of a subsequent date, and on facts proved and offered to be proved, which conduced to show, as plaintiffs insist, the fraudulent intent with which the letters were written.

The first letter, from Curtis to Brown, bears date the 5th of April, 1851, and reads as follows: 'Dear Sir-I have your note of yesterday, but have scarcely had a moment to peruse it this morning. My object, at the moment, is to ask your opinion as to any possibility of loss, by selling largely to the Thompsonville Company or Orrin Thompson. Whatever that opinion may be, it will be discreetly used by myself.'

The reply to this letter is marked 'confidential,' and dated 'New York, 7th April, 1851. T. B. Curtis, Esquire. Dear Sir: With respect to Thompson and Co. and Orrin Thompson, I have to say, that our house done business with them for some twenty years or more; they have always met their engagements promptly, and we feel are men of strict integrity. They have unquestionably laid out too much money in the Tariffville Manufacturing Company and the Thompsonville Carpet Manufacturing Company, and my house has been for years in the habit of loaning them either paper or money to a considerable extent on security. On the failure of Austen and Spicer, they were unfortunately on their paper (received for sales of carpets) for $183,000; this threw, suddenly, so heavy a burden on Thompson and Co., that Messrs. Hicks and Co. and ourselves looked into their affairs, and feeling that they had an abundance to pay every one and have a handsome sum left, if they continued their business, we jointly advanced the money to pay their indorsements as they came round, for which advances we have security. In order, however, to relieve them from the necessity of borrowing, and needing more cash capital to carry on the business comfortably, both the companies alluded to owing Messrs. Thompson and Co. each about $375,000, making, together, $750,000, executed a mortgage to John H. Hicks, W. S. Wetmore, and James Brown, for $750,000, to secure the payment of those bonds, which are payable in six, eight, and ten years. A gentleman goes out to Europe this month to negotiate these bonds, which he feels confident of doing on favorable terms. The negotiation of these bonds, and the securities held, would pay off all the advances made by ourselves, Messrs. Hicks and Co., and of W. S. Wetmore, who also made them some advances. From Thompson's statement of the business of the factory, they are doing a good, nay, a very profitable business, and I feel that in making sales to them now, no more than the ordinary business risk would be run.

'If the bonds are negotiated, which is confidently expected, they would be enabled to conduct their business with more facility and comfort than they have ever yet done, and as I will recommend brother William to take from sixty to one hundred thousand dollars for himself and for me, whatever they are negotiated at, the confidence shown will probably help the negotiation. Messrs. Hicks will also take some of them. Since the failure, Thompson and Co. have laid their hands on Austen and Spicer's property, to the extent of fifty thousand dollars, reducing the risk to one hundred and twenty-three thousand; and out of this they will get a dividend. As Mr. Orrin Thompson considers himself fully worth four hundred thousand dollars, any loss that can now occur by Austen and Spicer does not hurt him much. All they want is the negotiation of the bonds, to make them move on with perfect comfort. (Signed) JAMES BROWN.'

The next letter from Curtis to Brown is dated 'Boston, 26th June, 1851. A friend of ours desires me to inform him how far it would be satisfactory to me (you) to have him sell to the Thompsonville Company. I replied that I believed you thought favorably of the concern. Now I wish to know what your present feelings are in respect to that concern; there being several among my friends here who have heretofore sold them wool, and wish to continue to do so.'

The answer to this letter was: 'Dear Sir-We are in receipt of yours 26th instant; contents noted. We continue to have a favorable opinion of the concern you allude to. (Signed) BROWN, BROTHERS, AND CO.'

Mr. Curtis being called as a witness, said he was agent for Brown, Brothers, and Co., who carried on, in the city of New York, an extensive banking business. He wrote his first letter at the request of Iasigi, and never showed the reply except to him and his friend, Mr. Skinner, until after the failure of the Thompsons. When he wrote to Brown, he did not let him know that the information requested was for any other person than himself. On the day his first letter was written, Iasigi said to him that he held a large amount of notes of certain factories in Connecticut, indorsed by Orrin Thompson, of New York; that by the recent failure of Austen and Spicer they had lost money, and he was solicitous about the paper he held. Witness supposed it amounted to about the sum of $40,000. He said Brown was the friend of Thompson, and witness was requested to ascertain his standing by writing to Brown.

As the answer was marked confidential, the witness, when Iasigi first read the letter, declined handing it to him to show to his partner, but on his calling, it was shown to him also. Witness expressed a favorable opinion as to Iasigi's getting his money. Mr. Brown never authorized the witness to show his letter to any one. After the failure of Thompson, Iasigi stated he had collected his debt, but that he again trusted them. The witness remarked, that on that letter you should not have trusted them. He asked to see the letter, and on reading it he said, if you had not stated this to be the same letter, I should not have believed it.

The witness stated, some of our clients prior to this had been in the habit of selling wool to Thompson and Co. There were five or six firms, importers of wool, who had credits with me. It was highly important to me and my principals that I should know the standing of this great concern, because large amounts of credits were being invested in wool, by houses which might or might not be jeoparded by selling to that concern; I mean invested by correspondents of Brown, Brothers, and Co., who had credits for them.

Mr. Grant, a witness, stated that he, Iasigi, and several others who had sold wool to the two companies and Thompson, had an interview with the defendant at his office in the city of New York, where a conversation respecting the letters was had, principally between Iasigi and Brown, who replied that the letter of the 7th of April was a guarded one, and as to the second letter, it was only a statement that 'we continue to have a favorable opinion of the concern.' He proceeded to say that the connection of Brown, Brothers, and Co. with Mr. Thompson had been of long date; that they had a great number of transactions together, and that at the time the April letter was written, they intended to carry Mr. Thompson through; but that Thompson had deceived them. He repeated several times that this was a guarded letter, and as it was written in entire good faith, and as they had lost much more than we had subsequently to the writing of the letter, they did not see how there could be any responsibility resting on them.

As the company was about separating, Mr. Stewart Brown observed: 'If you had called on us, gentlemen, and conversed with us, instead of writing, you would not have sold this wool. That the letter was a guarded one, was several times repeated. That they had great confidence in Thompson; that at the time the letter was written they had lost their confidence, but still meant to carry him through in good faith; but being unable to do so, and having lost their confidence, the letter was guarded.' On being asked by witness, if, at the time the first letter was written, he had all the property of Orrin Thompson conveyed to him, he replied: 'No, sir, not all his property, but his real estate.' There was no objection at this time by any one, that the letter was confidential. The Browns refused to acknowledge any responsibility.

After this evidence had been given, the plaintiffs offered evidence, not objected to or excluded, except as hereinafter stated, tending to prove that certain statements in the letter of April 7, 1851, material to show the property and credit of the two companies, and of Orrin Thompson, and the safety and expediency of selling them goods on credit, and material to influence and determine the judgment of one who should read the letter, in regard to the safety and expediency of so selling goods on credit, were false at the time the letter was written, and were then known to the defendant to be false. And that the defendant, prior to the 7th of April, alone and jointly with one Hicks, had taken conveyances, in mortgage or absolutely, of all Orrin Thompson's property, real and personal, with some small exceptions, to the amount of one hundred and eighty-eight thousand dollars, as security for the debt and liabilities of the house of Thompson and Co. to defendant's house and said Hicks, amounting to over five hundred and nine thousand dollars. And also offered evidence to prove that defendant had an interest of a pecuniary kind to sustain the credit of said Thompsonville Company, said Tariffville Manufacturing Company, and Orrin Thompson, and to induce extensive sales of goods on credit to them.

And other evidence was offered conducing to show that the letter was written with a fraudulent intent, and that it was intended for other persons than Curtis. And the plaintiffs proved that they made the sales stated in the declaration, relying on and trusting to the statements in said letter.

But the evidence, as above offered, was rejected as immaterial and as insufficient, when taken in connection with the other evidence above set forth, to authorize the jury to find a verdict for the plaintiffs.

And the court thereupon ruled and held, that the plaintiffs had not maintained their action, and directed a verdict for the defendant. And a verdict was accordingly so rendered. To which rulings and direction the counsel for the plaintiffs excepted.

The 3d section of the act of Massachusetts, to prevent frauds and perjuries in contracts and actions founded thereon, published in the Revised Statutes of 1836, provides that 'No action shall be brought to charge any person, upon or by reason of any representation or assurance, made concerning the character, conduct, credit, trade, or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.'

As the letter was written in New York, a doubt has been suggested whether this statute can apply to the case. The letter was intended to operate in Massachusetts, and consequently the law of that State applies to it. But it is not perceived that the statute can have any other effect than to require the representation, on which the defendant is charged, to be in writing.

No one controverts the power and duty of the court to construe all written agreements or papers which are given in evidence. This is not the question involved in this case. No individual can be held responsible for a statement of facts, however injurious they may be to an individual or company. But when there is a misstatement of facts in regard to the pecuniary ability of an individual or company, and, especially, if this be done through interested motives or a fraudulent intent, by reason of which a credit is given and the debt is lost, the facts which conduce to establish the liability must, as in this case, be outside of the writing. And if these facts may not be established by parol evidence, there can be no remedy in such cases, however gross the fraud or ruinous the consequences may be.

It is contended that the letter of the 7th of April, being marked confidential, could have been intended only for Curtis, the agent, and that he was not authorized to show it to the plaintiffs. In his testimony Mr. Curtis says, Brown never authorized him to show the letter. There may have been no express authority to show the letter, but the intention of the writer, in this respect, can be best ascertained by reference to the facts and circumstances under which it was written.

In his letter of April the 5th, Mr. Curtis requested to know 'the opinion of the defendant as to any possibility of loss by selling largely to the Thompsonville Company or Orrin Thompson; and he remarks, whatever that opinion may be, it will be discreetly used by myself.'

Mr. Curtis states, when under examination as a witness, that he was then, and had been for several years, acting as the agent of the Browns, and that was his principal business. He said that he was not, at any time, a seller of wool to the factories of Orrin Thompson. This employment of the agent must have been known to his principal, and it appears in the proof that when the plaintiffs and others had an interview with the defendant, in New York, he spoke of the letter being guarded, but made no objection that it had been written to his agent in confidence, and ought not to have been shown to the plaintiffs.

In view of these and other facts, it might have been submitted to the jury whether the defendant, in marking his letter 'confidential,' intended it for the eye of his agent only. The terms of the letter, independently of the above facts, would scarcely authorize such an inference. The 'opinion will be discreetly used by myself.' This was notice to Brown that the opinion was to be used, and how could it be used by the agent, who made no sales of wool to Thompson on his own account, without imparting the opinion to others; but 'the opinion will be discreetly used by myself.' It shall not be made known by any other person than myself, and you may rely on my discretion. In view of the facts, the jury should consider whether the word 'confidential' might be construed to mean, in confidence that you will use my opinion discreetly by yourself, as you propose, or whether it restricted the letter to the agent only.

This seems to have been the construction given to the letter by the agent. He suffered Iasigi to read it, but refused to give it into his hands to show to Skinner. Had the writer intended that no one should read the letter but Curtis, he would probably have said so. Such a restriction was not necessarily imposed by the terms of the letter, in view of the facts proved. Its detailed statement of facts in regard to the embarrassments of the two concerns and of Orrin Thompson, and how they had been relieved by himself and others, and enabled to do a good, nay 'a profitable business,' &c., would be a matter, in connection with other facts, for the jury to consider, and to determine whether the letter could have been written for the eye of the agent only, who at no time sold wool to Orrin Thompson.

In another letter written to the defendant by Curtis, he says: 'A friend of ours desires me to inform him how far it would be satisfactory to me, (you,) to have him sell to the Thompsonville Company. I replied that I believed you thought favorably of the concern. Now, I wish to know what your present feelings are in respect to that concern, there being several among my friends who have heretofore sold them wool, and wish to continue to do so.' To this, Brown, Brothers, and Co. reply: 'We continue to have a favorable opinion of the concern you allude to.'

This letter sheds some light on the first letter of Brown. It was on the same subject, and was a reiteration of what had been stated more particularly and at large in the first letter. In fact, the words 'we continue to have a favorable opinion of the concern you allude to,' refers to an opinion before expressed.

As the court instructed the jury to find for the defendant, on the ground that the plaintiffs had not sustained their action, if the plaintiffs gave, or offered to give, any evidence which was fit to be considered by the jury, the judgment must be reversed. Any evidence conducing to prove that the statements of the defendant, in the letter of the 7th April, in regard to the condition of the Thompsonville Company and Orrin Thompson, and their ability to meet their engagements, and in regard to the value of Thompson's property, were false, was competent evidence as tending to prove the facts. And especially was the testimony of Grant admissible, who heard the defendant say, if the plaintiffs had called on them personally, they would not have sold their wool to the company; also the statement that before the letter was written, Brown admitted that he had lost confidence in Thompson, and therefore the letter of the 7th of April was guarded. These, and all other facts which conduce to show that the defendant acted in bad faith in writing that letter, are proper to be considered by the jury.

By whatever motives the defendant may have been actuated, he is not to be held responsible, unless his letters did mislead, and were intended to mislead the plaintiffs. And it will be for the jury to say, on a thorough examination of the letters, and the facts and circumstances connected with them, whether they were calculated to inspire, and did inspire, a false confidence in the pecuniary responsibility of the Thompsonville Company and Orrin Thompson. If an impression, not only of their solvency but of their success in business, so that by selling largely to them no more than the ordinary risks of business were incurred, was made and authorized, by the letters, while, at the same time, their true condition was known to the defendant, which did not authorize such a representation, and which was intended to deceive and mislead the plaintiffs, the defendant may be justly held responsible. But of this the jury are to judge, they being the triers of the facts outside of the letters, and which should be submitted to them for their consideration and decision.

We have necessarily referred to the leading facts stated in the bill of exceptions, in order to show that the circuit court erred in withdrawing them from the jury; but we express no opinion on the merits of the case.

The judgment of the circuit court is reversed, and the cause is remanded for a venire de novo.

Mr. Justice NELSON, Mr. Justice CURTIS, and Mr. Justice CAMPBELL dissented.

Mr. Justice CURTIS.

I do not agree with the majority of my brethren in this case. But, as I may be required to preside at the trial which has now been ordered, I am not willing to enter into a discussion of the evidence heretofore given, and which will doubtless be repeated on another trial. Without doing so, it is not practicable to exhibit the legal principles which, in my opinion, should govern this case. I, therefore, merely say I do not concur in the judgment.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district ofMassachusetts, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo.

Mr. Justice CAMPBELL, Mr. Justice NELSON, and Mr. Justice CURTIS dissented.

title: Iasigi v. Brown/Opinion of the Court


text: Talk:Iasigi v. Brown/Opinion of the Court


text:
United States v. Nickerson

THIS case came up from the circuit court of the United States for the district of Massachusetts, upon a certificate of division in opinion between the judges thereof.

In March, 1854, Nickerson was indicted for perjury, by the grand-jury of the district court of the United States for the district of Massachusetts, which indictment was framed under the act of July 29, 1813, ch. 35, §§ 7, 9; (3 Stats. at Large, 49;) revived February 9, 1816, ch. 14, (3 Stats. at Large, 254.)

By section 7: 'The owner of every fishing vessel of twenty tons and upwards, his agent or lawful representative, shall, previous to receiving the allowance made by this act, produce to the collector, who is authorized to pay the same, the original agreement or agreements which may have been made with the fishermen employed on board such vessel, as is hereinbefore required, and also a certificate, to be by him subscribed, therein mentioning the particular days on which such vessel sailed and returned on the several voyages or fares she may have made in the preceding fishing season, to the truth of which he shall swear or affirm before the collector aforesaid.'

Section 9 then provides: That 'any person who shall make any false declaration, in any oath or affirmation required by this act, being duly convicted thereof, shall be deemed guilty of wilful and corrupt perjury, and shall be punished accordingly.'

At the trial on the indictment, before the district court, the offence set forth was, making a false declaration, under oath, before the collector, that the paper produced and sworn to by the defendant was the original agreement.

The judge of the district court, who tried the case, held that this oath to the original agreement with the fishermen was not required by the act of July 29, 1813, § 7, (3 Stats. at Large, 52.) That the relative which, in that section, applied to and was satisfied by the oath to the certificate of the particular days on which such vessel sailed and returned, &c.; and, consequently, no false declaration, in any oath required by that act, was set forth in the indictment; the only oaths required by the act of 1813 being to the days of sailing and returning, the time employed at sea, and the size of the boat or vessel.

The United States attorney then offered to prove that this was a false swearing, touching the expenditure of public money, under the act of March 1, 1823, § 3, (3 Stats. at Large, 770.) United States v. Bailey, 9 Pet. 238.

But the judge held the evidence inadmissible, and the defendant was acquitted.

In May, 1854, Nickerson was again indicted by the grand-jurors of the circuit court, for the crime of perjury, in swearing that the fishermen's agreement produced was the original agreement, when, in fact, it was not; and also in swearing that three fourths of the crew employed were citizens of the United States, or persons not subject to any foreign prince or state, whereas five out of nine persons employed were subjects of Victoria, queen of Great Britain and Ireland.

Whereupon Nickerson put in a plea setting forth the former in lictment and acquittal.

The district attorney of the United States demurred to the plea, and the judges differed in opinion whether the defendant's special plea aforesaid be good, in bar, to this indictment, and the question was certified to this court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Lothrop, for the defendant.

Mr. Cushing made the following points:--

1. The false swearing alleged in the two indictments, is not one and the same perjury, at common law; but there are two distinct statute offences: one for making a false declaration in a certain prescribed form of an oath, required under the act of 1813; and the other for falsely swearing in order to effect a specific purpose, under an oath that may be required, but is not specified in the act of 1823.

2. The defendant could not have been tried under the first indictment, for the crime created by the act of 1823; because, to constitute the statute offence with which he was charged in the first indictment, under the act of 1813, there must be a false declaration made in an oath required by that statute. If the alleged false oath was not required by that act, no offence was set forth in the indictment.

3. So, also, to constitute the statute offence, under the act of 1823, touching the expenditure of public money, there must be a false swearing in an oath legally administered, and required or authorized by law. United States v. Bailey, supra.

4. The first indictment charged no false swearing, except in an oath required by the act of 1813. The second indictment, under the act of 1823, does set forth an oath necessary and required, impliedly by law, and expressly by the secretary of the treasury and by the collector, before the public money can be expended to pay the fishing bounty to the owner or agent of a fishing vessel.

5. The indictment, to which the plea of former acquittal is made, further sets forth a false swearing in the oath required by the collector, under the authority of the rules and regulations of the treasury department, in order to satisfy himself that two thirds of the crew of the fishing vessel were citizens of the United States.

This the act of March 1, 1817, makes a prerequisite to obtaining the fishing bounty, that the officers, and at least three fourths of the crew, shall be proved, to the satisfaction of the collector, to be citizens of the United States. 3 Stats. at Large, 351, § 3.

This act does not prescribe an oath, but it constitutes the collector the judge of that fact, and prohibits the expenditure of the public money, by payment of the bounty, unless the collector is satisfied on that point; and hence such rules and modes of proof may be prescribed, including an oath, which are requisite and proper to establish that fact.

7. If the district judge erred in deciding that the oath set out in the first indictment was not required by the act of 1813, the defendant cannot avail himself of that error; because it was a ruling in his favor, and against the United States, which could not except, but were bound by it in that cause.

8. If the district judge was right in that ruling, the defendant, who thereupon objected to the admission of evidence, to show another offence of falsely swearing under the act of 1823, cannot avail himself of the plea of former acquittal; because he was acquitted of the offence only set forth in the first indictment, and not of the offence set forth in the second indictment, which is another and different offence.

9. The two statute crimes are different and distinct, and require different averments; because the offence created under the act of 1813 is declared to be wilful and corrupt perjury, whereas the offence created by the act of 1823 is the crime of swearing falsely, touching the expenditure of public money, &c.; and the form, nature, or import of the oath is not prescribed, as it is in the act of 1813; nor is it declared or deemed to be wilful and corrupt perjury, by the act of 1823; but upon conviction of swearing falsely, touching the expenditure of public money, the party so convicted 'shall suffer as for wilful and corrupt perjury;' and this prescribes the punishment, and does not define the offence to be perjury, as defined at common law.

10. The courts of the United States, having no common-law jurisdiction of crimes, except statute offences only, must be strictly governed by the statute creating the offence, and cannot go beyond the precise statute offence, which is specifically and formally set forth in the indictment.

11. It is desirable that, in the decision of this cause, the court should pass upon the questions incidentally raised, touching the legality of the oaths required by the treasury department and by collectors, as prerequisites to obtaining, by owners and agents, the bounty allowed to fishing vessels.

Authorities incidental may be referred to in The Boat Swallow, Ware's R. 21; The Harriet, Ib. 343; S.C.. 1 Story's R. 251.

Mr. Lothrop, for the defendant, made the following points:--

First Point. The evidence which is competent and essential to support the present indictment might have been offered in proof, and in support of the former indictment. Regina v. Bird, Parke, Baron, 6 Br. Cr. Cas. 201; Act of 30th April, 1790, ch. 9, § 19, (1 Stats. at Large, 117;) 1 Chitty's Crim. L. 276, 281; 1 Starkie's Crim. Plead. 301; Act of Congress July 29, 1813, ch. 35, (3 Stats. at Large, 49;) Act of Congress March 1, 1817, ch. 31, § 3, (3 Stats. at Large, 351;) Act of Congress March 1, 1823, ch. 37, § 3, (3 Stats. at Large, 771;) Act of Congress March 3, 1825, ch. 65, § 13, (4 Stats. at Large, 118;) United States v. Nickerson, Law Reporter for September, 1854.

Second Point. The present indictment contains sundry allegations which do not constitute, if true, the crime of perjury. Coke, 3d Inst. 165; United States v. Bailey, 9 Pet. 238, Opinion of Mr. Justice McLean; United States v. Taylor, Law Reporter for September, 1854, p. 271; 1 Chitty's Cr. L. 295, 396.

Mr. Justice CURTIS delivered the opinion of the court.

title: United States v. Nickerson


text: Talk:United States v. Nickerson

title: Talk:United States v. Nickerson