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Brown v. United States (113 U.S. 568)

James Brown, the intestate of the appellant, was a boatswain in the United States navy. The petition in this case was filed against the United States by the administratrix of his estate in the court of claims to recover a balance of pay which she alleged was due to Brown at his death. The court of claims found the following facts: Brown, the decedent, was appointed a boatswain in the navy of the United States, January 4, 1862. On October 22, 1872, the naval retiring board, before which he had been ordered by the secretary of the navy under the provisions of section 23 of the act of August 3, 1861, (12 St. 291,) reported that he was incapacitated from performing the duties of his office, and that there was no evidence that such incapacity was the result of any incident of the service. He was accordingly, upon the day last mentioned, by order of the president, retired on furlough pay. From October 22, 1872, to June 30, 1875, Brown received pay at the rate of $900 per annum; and from July 1, 1875, to June 6, 1879, at the rate of $500 per annum. On the day last named he died. The court further found that the acts of August 3, 1861, (12 St. 290,) and of December 21, 1861, (12 St. 329,) were soon after their enactment construed by the president and navy department to include warrant officers, and under that construction it had been the uniform practice of the president to place warrant officers on the retired list, and large numbers of these officers had been so retired. No protest or objection was made y Brown during his life-time, either to his retirement or rate of pay. The accounting officers of the treasury had uniformly held that longevity pay to retired officers was not authorized by section 1593 of the Revised Statutes.

From these findings of fact the court of claims deduced, as a conclusion of law, that Brown was legally placed on the retired list, and had received the full amount of pay allowed him by law, and was not entitled to recover, and entered judgment dismissing the petition. The appeal of the petitioner brings that judgment under review.

John Paul Jones and Robert B. Lines, for appellant.

''Sol. Gen. Phillips'', for appellee.

Mr. Justice Woods delivered the opinion of the court. He recited the facts in the foregoing language.

title: Brown v. United States (113 U.S. 568)


text: Talk:Brown v. United States (113 U.S. 568)

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text:
Brown v. United States (113 U.S. 568)/Opinion of the Court

It is not denied that up to July 1, 1875, Brown received all the pay to which he was entitled. The first contention of the appellant is that the placing of Brown on the retired list was unauthorized by law, and that he was therefore entitled to the full pay of a boatswain from July 1, 1875, up to the time of his death. Section 23 of the act of August 3, 1861, (12 St. 291,) by authority of which the president assumed to retire Brown, reads as follows: 'That whenever any officer of the navy, on being ordered to perform the duties appropriate to his commission, shall report himself unable to comply with such order, or whenever, in the judgment of the president of the United States, an officer of the navy shall be in any way incapacitated from performing the duties of his office, the president, at his discretion, shall direct the secretary of the navy to refer the case of such officer to a board. * *  * The board, whenever it finds an officer incapacitated for active service, will report whether, in its judgment, the incapacity result from long and faithful service, from wounds or injuries received in the line of duty, from sickness or exposure therein, or from any other incident of the service; if so, and the president approve of such judgment, the disabled officer shall thereupon be placed upon the list of retired officers according to the provisions of this act. But if such disability or incompetency proceed from other causes, and the president concur in opinion with the board, the officer may be retired upon furlough pay, or he shall be wholly retired from the service with one year's pay, at the discretion of the president, and in this last case his name shall be wholly omitted from the navy register. * *  * '

The appellant asserts that this section applies only to commissioned officers and not to warrant officers, to which latter class Brown belonged. It must be conceded that were the question a new one the true construction of the section would be open to doubt. But the findings of the court of claims show that soon after the enactment of the act the president and the navy department construed the section to include warrant as well as commissioned officers, and that they have since that time uniformly adhered to that construction, and that under its provisions large numbers of warrant officers have been retired. This contemporaneous and uniform interpretation is entitled to weight in the construction of the law, and in a case of doubt ought to turn the scale.

In Edwards v. Darby, 12 Wheat. 206, it was said by this court that 'in the construction of a doubtful and ambiguous law the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to great respect.' This case is cited upon this point with approval in Atkins v. Disintegrating Co. 18 Wall. 301; Smythe v. Fiske, 23 Wall. 382; U.S. v. Pugh, 99 U.S. 265; and in U.S. v. Moore, 95 U.S. 763. In the case last mentioned the court said that 'the construction given to a statute by those charged with the duty of executing it ought not to be overruled without cogent reasons. The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterwards called upon to interpret.' And in the case of U.S. v. Pugh the court said: 'While, ther fore, the question,' the construction of the abandoned and captured property act, 'is one by no means free from doubt, we are not inclined to interfere at this late day with a rule which has been acted on by the court of claims and the executive for so long a time.' See, also, U.S. v. State Bank of N. C. 6 Pet. 29; U.S. v. Alexander, 12 Wall. 177; Peabody v. Stark, 16 Wall. 240; Hahn v. U.S. 107 U.S. 402; S.C.. 2 SUP. CT. REP. 494. These authorities justify us in adhering to the construction of the law under consideration, adopted by the executive department of the government, and are conclusive against the contention of appellant, that section 23 of the act of August 3, 1861, did not apply to warrant officers.

The appellant next contends that the retirement of Brown was illegal, because, at the time of his retirement, no officer could be placed on the retired list for disability not originating in the line of duty. The theory of this contention seems to be this: The statute required that all officers retired for disability or incompetency not resulting from long and faithful service, or wounds or injuries received in the line of duty, or from sickness or exposure therein, should be retired on furlough pay; and, as sections 3, 5, and 19 of the naval appropriation act of July 15, 1870, (16 St. 321,) abolished the furlough pay-list, the president was only authorized to retire Brown wholly from the service with one year's pay. We think it is clear that the sections of the statute referred to were not intended to abolish the furlough pay-list. So far as they refer to retired officers they apply to the retired list, and not the retired list on furlough pay. For 30 years the legislation of congress has divided retired naval officers into two classes. By section 2 of the act of February 28, 1855, (10 St. 616,) the officers on the retired, or, as it was then designated, reserved list, were divided into those entitled to receive leave of absence pay, and those entitled to receive furlough pay. The distinction between the two classes of retired officers has been preserved down to the present time. Thus, in section 3 of the act of January 16, 1857, (11 St. 154,) it was provided that the president should be authorized to transfer any officer from the furlough to the reserved pay-list. By section 23 of the act of August 3, 1861, (12 St. 290, 291,) by virtue of which Brown was retired, it was provided that officers incapacitated for active service from long service, wounds, etc., should be placed on the list of retired officers, but those incapacitated from other causes should be retired upon furlough pay. So, by section 2 of the act approved July 28, 1866, (14 St. 345,) it was provided that the rate of pay of officers of the navy on the retired list and not no duty, nor retired on furlough pay, should be one-half the pay to which such officers would be entitled if on duty at sea.

This legislation has been reproduced in the Revised Statutes, where the distinction between officers on the retired list and officers on the retired list on furlough pay is preserved. Thus, sections 1588 and 1592 prescribe one rate of pay for retired officers, and section 1593 a different rate for officers on the retired list on furlough pay, and section 1594 authorizes the president, by and with the advice and consent of the senate, to transfer any officer of the navy on the retired list from the furlough to the retired pay-list. It is plain, therefore, that section 5 of the act of July 15, 1870, relied on by appellant, and which is the only one which refers to the pay of retired officers, applies in both its terms and meaning only to the pay of officers on the retired list, and not to the compensation of officers retired on furlough pay, to which class Brown belonged, and did not abolish the furlough pay-list. The order of the president retiring Brown on furlough pay was, therefore, made strictly in accordance with the provisions of the statute t en and still in force.

It is next objected that the order of the president retiring Brown was illegal and void, because the retiring board having reported him incapacitated, did not find and report what was the cause of his incapacity, but only that there was no evidence that it was the result of any incident of the service. But as it is incumbent on the officer whose case comes before a retiring board to show, in order to secure a report which will entitle him to be placed on the retired list rather than on the retired list on furlough pay, that his incapacity was the result of some incident of the service, the report of the board that there was no evidence to support such a finding is to all intents and purposes a report that the incapacity was not the result of an incident of the service, and justifies an order retiring the officer on furlough pay. But if there had been any irregularity or defect in the report of the board it was the duty of Brown to object to it without unreasonable delay. After his acquiescence in the proceedings during the remainder of his life, it does not lie with his administratrix to object to them, even for a substantial defect, much less for such an irregularity, if it be an irregularity, as is set up in this case. Our opinion is, therefore, that the order of the president retiring Brown was authorized by law, and was regular and valid.

Appellant next insists that, conceding the retirement of Brown to be valid, he did not receive, after July 1, 1875, the pay to which he was entitled. It is contended, first, that he should have been paid according to the provisions of section 5 of the act of July 15, 1870, (16 St. 333,) now forming the last clause in section 1588 of the Revised Statutes. This enactment provides that officers on the retired list shall receive one-half the sea-pay allowed to the grade or rank which they held at the date of their retirement. But we have seen that Brown did not belong to the general list of retired officers, but to a distinct class, namely, officers retired on furlough pay. His case, therefore, fell under the enactments embodied in section 1593 of the Revised Statutes, which fixed his pay at one-half that to which he would have been entitled if on leave of absence on the active list. This is the rate at which he has been paid. It is next said that, conceding that his pay was fixed by section 1593, he should, after his retirement, have received the increase of pay allowed officers on the active list for length of service by section 1556 of the Revised Statutes, p. 267, commonly known as longevity pay, which, after July 1, 1875, would have entitled him to $600 per annum instead of the $500 which he actually received. This last contention has been decided adversely to the view of the appellant by this court, at the present term, in the case of Thornley v. U.S., ante, 491. We are, therefore, of opinion that Brown was paid, in his life-time, all that he was entitled to receive under the laws then in force. The judgment of the court of claims dismissing his petition was therefore right, and is affirmed.


text: Talk:Brown v. United States (113 U.S. 568)/Opinion of the Court


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Chicago Life Insurance Company v. Needles

C. C. Bonney, for plaintiff in error.

J. L. High and E. B. Sherman, for defendants in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:


text: Talk:Chicago Life Insurance Company v. Needles


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Chicago Life Insurance Company v. Needles/Opinion of the Court

By an act of the general assembly of Illinois, approved February 16, 1865, certain named persons were created a body politic and corporate by the name of the Travelers' Insurance Company, with authority to carry on the business of insuring persons against the accidental loss of life or personal injury sustained while traveling by railways, steamers, and other modes of conveyance. Subsequently, by an act approved February 21, 1867, the provisions of which were formally accepted by the company,-its name was changed to that of the Chicago Life Insurance Company, and it was invested with power to make insurance upon the lives of individuals, and of persons connected by marital relations, to those applying for insurance, or in whom the applicant had a pecuniary interest as creditor or otherwise; 'to secure trusts, grants, annuities, and endowments, and purchase the same, in such manner, and for such premiums and considerations, as the board of directors or executive committee shall direct.' That, as well as the original act, was declared to be a public act, to be liberally construed for the purposes therein mentioned.

A general law of the state, approved March 26, 1869, and which took effect July 1, 1869, entitled 'An act to organize and regulate the business of life insurance,' provides, (section 10:) 'When the actual funds of any life insurance company doing business in this state are not of a net value equal to the net value of its policies, according to the 'combined experience,' or 'actuaries' rate of mortality, with interest at four per centum per annum, it shall be the duty of the auditor to give notice to such company and its agents to discontinue issuing new policies within this state until such time as its funds have become equal to its liabilities, valuing its policies as aforesaid. Any officer or agent who, after such notice has been given, issues or delivers a new policy from and on behalf of such company before its funds have become equal to its liabilities as aforesaid, shall forfeit, for each offense, a sum not exceeding one thousand dollars.' The same statute requires, among other things, every life insurance company incorporated in Illinois to transmit to the auditor, on or before the first day of March, in each year, a sworn statement of its business, standing, and affairs, in the form prescribed or authorized by law and adapted to its business; employers that officer to address inquiries to any company in relation to its doings or condition, or to any other matter connected with its transactions, to which it was required to make prompt reply; and makes it his duty to make, or cause to be made, an examination of its condition and affairs, whenever he deems it expedient to do so, or whenever he has good reason to suspect the correctness of any annual statement, or that its affairs are in an unsound condition. The provisions relating life insurance companies, incorporated in other states, and doing business in Illinois, need not be here examined, or their effect determined.

By another general statute, approved February 17, 1874, in force July 1, 1874, it is provided as follows:

'Section 1. If the auditor of state, upon examination of any insurance company incorporated in this state, is of the opinion that it is insolvent, or that its condition is such as to render its further continuance in business hazardous to the insured therein, or to the public, or that it has failed to comply with the rules, restrictions, or conditions provided by law, or has exceeded or is exceeding its corporate powers, he shall apply by petition to a judge of any circuit court of this state to issue an injunction restraining such company, in whole or in part, from further proceeding with its business, until a full hearing can be had, or otherwise, as he may direct. It shall be discretionary with such judge either to issue said injunction forthwith, or to grant an order for such company, upon such notice as he may prescribe, to show cause why said injunction should not issue, or to cause a hearing to be had on complaint and answer, or otherwise, as in ordinary proceedings in equity, before determining whether an injunction shall be issued. He may, in all such cases, make such orders and decrees, from time to time, as the exigencies and equities of the case may require, and in any case, after a full hearing of al parties interested, may dissolve, modify, or perpetuate such injunction, and make all such orders and decrees as may be needful to suspend, restrain, or prohibit the further continuance of the business of the company.'

'Sec. 5. When the charter of any such insurance company expires, is forfeited, or annulled, or the corporation is restrained from further prosecution of its business, or is dissolved, as hereinbefore provided, the court, on application of the auditor, or of a member, stockholder, or creditor, may, at any time before the expiration of said two years, appoint one or more persons to be receives, to take charge of the estate and effects of the company, including such securities as may be deposited with the auditor or treasurer of state, and to collect the debts due, and property belonging to it, with power to prosecute and defend suits in the name of the corporation, or in their own names, to appoint agents under them, and do all other acts necessary for the collection, marshaling, and distributing of the assets of the company, and the closing of its concerns; and, when necessary for the final settlement of its unfinished business, the powers of such receivers may be continued as long as the court deems necessary therefor.' 'Sec. 9. The mode of summoning parties into court, the rules of practice, course of procedure, and powers of courts, in cases arising under this act, shall be the same as in ordinary proceedings in equity in this state, except as herein otherwise provided.'

Under the authority conferred by the latter statute the auditor caused an examination to be made by the chief clerk of the insurance department of the state into the condition of this company. That officer reported that it had been doing a losing business for several years, was insolvent within the meaning of the statute, and that immediate steps should be taken to appoint a receiver, to the end that the affairs of the company be wound up as quickly as possible, as being for the best interests of its policy-holders. As the result of that examination, the present proceedings were commenced by the auditor in the circuit court of Cook county under the said act of 1874. The petition filed by him shows that, in his opinion, the condition of the company rendered its further continuance in business hazardous to the insured. He prayed that the company be enjoined from further prosecuting its business; that a receiver be appointed to take charge of its real estate and effects; and that such other relief be granted as should be meet. An injunction was issued, and a receiver appointed, with authority to take possession of the property of the company; the latter being directed to execute all conveyances necessary to vest in him full title to all its property, assets, and choses in action. The company, by its answer, put the plaintiff on proof of all the material allegations of the petition. At the final hearing, it moved the court, upon written grounds, for a final decree in its behalf; one of which was that the statutes of the state, under which these proceedings were had, were in violation of the constitution of the United States, in that they impaired the obligation of the contract between the state and the company, as well as of the contracts between the company and its policy-holders and creditors. This motion was denied, and a final judgment rendered perpetually enjoining the company from further prosecution of its business. From that judgment a writ of error was prosecuted to the supreme court of the state, where, among other things, was assigned for error the refusal of the court of original jurisdiction to adjudge that the said statutes of Illinois were in violation of the constitution of the United States. The judgment of the inferior court was, in all things, affirmed by the supreme court of the state, and from that judgment of affirmance the present writ of error is prosecuted.

The supreme court of Illinois did not, in terms, pass upon the claim distinctly made there, as in the court of original jurisdiction, that the statutes in question were in derogation of rights and privileges secured to appellant by the constitution of the United States. But the final judgment necessarily involved an adjudication of that claim; for, if the statutes, upon the authority of which alone the auditor of state proceeded, are repugnant to the national constitution, that judgment could not properly have been rendered. This court, therefore, has jurisdiction to inquire whether any right or privilege, protected by the constitution of the United States, has been withheld or denied by the judgment below. And our jurisdiction is not defeated because it may appear, upon examination of this federal question, that the statutes of Illinois are not repugnant to the provisions of that instrument. Such an examination itself involves the exercise of jurisdiction. The motion to dismiss the writ of error upon the ground that the record does not raise any question of a federal nature must, therefore, be denied.

The case upon the merits, so far as they involve any question of which this court may take cognizance, is within a very narrow compass. The main proposition of the counsel is that the obligation of the contract which the company had with the state, in its original and amended charter, will be impaired, if that company be held subject to the operation of subsequent statutes, regulating the business of life insurance and authorizing the courts, in certain contingencies, to suspend, restrain, or prohibit insurance companies incorporated in Illinois from further continuance in business. This position cannot be sustained, consistently with the power which the state has, and, upon every ground of public policy, must always have, over corporations of her own creation. Nor is it justified by any reasonable interpretation of the language of the company's charter. The right of the plaintiff in error to exist as a corporation, and its authority, in that capacity, to conduct the particular business for which it was created, were granted, subject to the condition that the privileges and franchises conferred upon it should not be abused, or so employed as to defeat the ends for which it was established, and that, when so abused or misemployed, they may be withdrawn or reclaimed by the state, in such way and by such modes of procedure as are consistent with law. Although no such condition is expressed in the company's charter, it is necessarily implied in every grant of corporate existence. Terrett v. Taylor, 9 Cranch, 51; Ang. & A. Corp. (9th Ed.) § 774, note.

Equally implied, in our judgment, is the condition that the corporation shall be subject to such reasonable regulations, in respect to the general conduct of its affairs, as the legislature may, from time to time, prescribe, which do not materially interfere with or obstruct the substantial enjoyment of the privileges the state has granted, and serve only to secure the ends for which the corporation was created. Sinking Fund Cases, 99 U.S. 700; Com. v. ''Farmers' & Mech. Bank'', 21 Pick. 542; Commercial Bank v. Mississippi, 4 Smedes & M. 503. If this condition be not necessarily implied, then the creation of corporations, with rights and franchises which do not belong to individual citizens, may become dangerous to the public welfare, through the ignorance or misconduct or fraud of those to whose management their affairs are intrusted. It would be extraordinary if the legislative department of a government, charged with the duty of enacting such laws as may promote the health, the morals, and the prosperity of the people, might not, when unrestrained by constitutional limitations upon its authority, provide, by reaso able regulations, against the misuse of special corporate privileges which it has granted, and which could not, except by its sanction, express or implied, have been exercised at all.

In the present case it is claimed by the state that the Chicago Life Insurance Company was never solvent at any time after its original organization; that only 10 per cent. of its authorized capital stock was ever paid in; that stock subscription notes, representing unpaid subscriptions, were ingeniously made payable on demand, with interest after such demand, and that, no demand having been made, no interest accrued; that, nevertheless, the verified reports of the company to the state indicated that its capital stock was fully paid up in cash, thus leading the public and the insured to believe that the stock was paid up and invested in interest-bearing securities; that large dividends were annually paid to stockholders from the earnings of the company, which, consistently with an honest exercise of its franchises and privileges, and with its duty to policy-holders, should not have been paid; that interest upon collateral securities, deposited by stockholders owing subscriptions, was received by the stockholders themselves; that the annual dividends paid to stockholders was in direct violation of the company's by-laws; that the annual reports to the auditor scheduled large amounts of assets and securities as the property of the corporation, when, in fact, they were the property of individuals; that such reports falsely magnified the receipts of the company and misstated its disbursements; and that its last annual report included, among its securities, about $80,000 of mortgages, which were not the property of the company. These statements, counsel for the state claim, are fully sustained by the evidence in the cause, while counsel for the company, with equal emphasis, contends that the showing made is all that could be desired in a corporation managed by careful, honest directors.

We express no opinion as to the correctness of either of these opposing views; for they refer to matters that to not necessarily involve the validity of the statutes, which, it is contended, violate the national constitution; they relate only to the manner in which the company has exercised its corporate powers, and do not involve any question of a federal nature. It is not competent, under existing laws, for this court to inquire whether the state court correctly interpreted the evidence as to the company's insolvency; nor whether the facts make a case which, under the statute of 1874, required or permitted a judgment perpetually enjoining it from doing any further business. We are restricted by the settled limits of our jurisdiction to the specific inquiry whether the statutes themselves, upon which the judgment below rests, impair the obligation of any contract which the company, or its policy-holders, had with the state, or infringe any right secured by the national constitution. Railroad Co. v. Rock, 4 Wall. 180; Knox v. Exchange Bank, 12 Wall. 383. It is only as bearing upon the question of the power of the state-without any express reservation to that end having been made in the charter of the company-to subject it to such regulations as those established by the act of 1869, or to compel it to cease doing business when the circumstances exist which are set out in the act of 1874, that we have referred to the facts which counsel for the state contend are fully established by the evidence. If the state had no such power, then the statutes under which she proceeds would impair the contract which the company had with her by its charter. But can it be possible that the state, which brought this corporation into existence for the purpose of conducting the business of life insurance, is powerless to protect the people against it, when-assuming, as we must, the facts to be such as the judgment below implies-its further continuance in business would defeat the object of its creation, and be a fraud upon the public, and on its creditors and policy-holders? Did the company, by its charter, have a contract that it should, without reference to the will of the state, or the public interests, exercise the franchises granted by the state after it became insolvent, and, consequently, unable to meet the obligations which, as a corporation, under the sanction of the state, it had assumed to its policy-holders? Our answer to these questions is sufficiently indicated by what has been said. The act of 1869 does not contain any regulation respecting the affairs of any corporation of Illinois which is not reasonable in its character, or which is not promotive of the interests of all concerned in its management. It only guards against mismanagement and misconduct; its requirements constitute reasonable regulations of the business of such local corporations; it does not impair the obligation of any contract which this company had with the state; the conditions imposed upon the rights of the company to continue the issuing of policies are neither arbitrary nor oppressive.

The same general observations apply the contract right of the company to carry on business as a corporation, does not, by a legislative decree merely, based upon the ex parte representations of public officers, assume to withdraw that right. There is no denial, as counsel supposes, of the equal protection of the laws, nor any deprivation of property without due process of law; for that statute authorizes a public officer to bring the company before a judicial tribunal, which, after full opportunity for defense, may determine whether it is insolvent, or its condition such as to render its continuance in business hazardous to the insured or to the public, or whether it has exceeded its corporate powers, or violated the rules, restrictions, or conditions prescribed by law; grounds which, if established, constitute sufficient reason why the corporate franchises and privileges granted by the state should be no longer enjoyed. Terrett v. Taylor, ubi supra; 2 Kent, Comm. 304, 312; Slee v. Bloom, 5 Johns. Ch. 379; Com. v. ''Farmers' & Mech. Bank'', 21 Pick. 542. See, also, Ang. & A. Corp. (9th Ed.) § 774, and note. That a suit for such purposes might be instituted if, in the opinion of the auditor of state, any of those grounds existed, affords no justification to characterize this proceeding as harsh or arbitary; for, at last, the final judgment of the court must depend upon the facts as established by competent evidence, and not upon the mere opinion of that officer. Indeed, the existence of such an opinion, upon the part of that officer, as a condition of his right to institute the proceedings prescribed by the act of 1874, is in the interest of the corporations embraced by its provisions; for it furnishes some protection against hasty or oppressive action against them. These views are strengthened by the company's acceptance of the amended charter granted in 1867. The fifth section of that act is in these words: 'This act and the act to which this is an amendment shall not be deemed to exempt said company from the operation of such general laws as may be hereafter enacted by the general assembly on the subject of life insurance.' That section may not be equivalent to a reservation of the right of the legislature to alter, amend, or repeal the original charter at pleasure; and, if it be admitted that the company, prior to that amendment, could not have been subjected to the regulations prescribed by the acts of 1869 and 1874, yet it was entirely competent for it to waive-as, by its acceptance of the amended charter, it did waive-any such exemption, and, in consideration of the grant of additional powers, or without any consideration of that character, agree to come under the general laws on the subject of the business in which it was engaged, which did not materially impair its right to carry on that business, or take from it any substantial privileg conferred by the original charter. It took the additional rights given by the act of 1867, subject to the condition imposed by its fifth section.

It is further contended that the state enactments in question impair the obligation of the contracts which the company has made with its creditors and policy-holders. To this it is sufficient to reply, in the language of this court in Mumma v. Potomac Co. 8 Pet. 283, where it was said: 'A corporation, by the very terms and nature of its political existence, is subject to dissolution by surrender of its corporate franchises, and by a forfeiture of them for willful misuse and non-use. Every creditor must be presumed to understand the nature and incidents of such a body politic, and contract with reference to them. And it would be a doctrine new in the law that the existence of a private contract of the corporation should force upon it a perpetuity of existence contrary to public policy, and the nature and objects of its charter.' The contracts of policy-holders and creditors are not annihilated by such a judgment as was rendered below; for, to the extent that the company has any property or assets, their interests can be protected, and are protected, by that judgment. The action of the state may or may not have affected the intrinsic value of the company's policies; that would depend somewhat on the manner in which its affairs have been conducted, upon the amount of profits it has realized from business, and upon its actual condition when this suit was instituted; but the state did not, by granting the original and amended charter, preclude herself from seeking, by proper judicial proceedings, to reclaim the franchises and privileges she had given, when they should be so misused as to defeat the objects of her grant, or when the company had become insolvent so as not to be able to meet the obligations which, under the authority of the state, it had assumed to policy-holders and creditors.

The whole argument in behalf of the company proceeds upon the erroneous assumption that this court has authority to determine whether the facts make a case under the statutes of 1869 and 1874, and if it be found that they did not, that it must enforce the right of the company to continue in business, despite the final judgment to the contrary by the courts of the state which created it; whereas, we have only to inquire whether the statutes in question impair the obligation of any contract which the company has with the state, or violate any other provision of the national constitution. Being of opinion that they are not open to any objection of that character, the judgment must be affirmed without any reference to the weight of the evidence upon any issue of fact made by the pleadings.

Judgment affirmed.


text: Talk:Chicago Life Insurance Company v. Needles/Opinion of the Court


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Pearce v. Ham

John M. Palmer, for appellants.

S. P. Wheeler, for appellee.

WOODS, J.

title: Pearce v. Ham


text: Talk:Pearce v. Ham

title: Talk:Pearce v. Ham


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Pearce v. Ham/Opinion of the Court

The bill was filed by Charles I. Ham, the appellee, against Isaac N. Pearce and Andrew J. Kuykendall, the appellants. The record showed the following facts: On August 5, 1868, one Joseph K. Frick entered into a contract in writing of that date with the county court of Johnson county, in the state of Illinois, by which he agreed to build, according to certain plans and specifications, a court-house for said county, at Vienna, the county seat, furnishing the material and completing it by the first Monday of September, 1870, in consideration whereof the county court agreed to pay him $38,357 in the bonds of Johnson county, bearing 10 per cent. interest, and due in six years. The bonds were to be paid in installments: one-fourth at the time of the execution of the contract, one-fourth when the work was half done, one-fourth when the work was three-fourths done, and the residue when it was completed. Frick, to secure the performance of his contract, executed to the judges of the county court a bond in the penal sum of $20,000, with the appellant Andrew J. Kuykendall as his surety. Frick never did any work on the building, and, owing to some misunderstanding with the county court, abandoned the contract, and told Kuykendall that he might go on and build the court-house if he chose to do so. On September 9, 1869, Kuykendall, as the agent and attorney in fact of Frick, assigned the contract of the latter to Ham and Pearce; Ham being the appellee, and Pearce one of the appellants, who had formed a partnership for the purpose of building the court-house under said contract.

Before accepting the assignment, Ham, who was a practical mechanic, read the contract and made an estima e of the cost of the building according to the plans and specifications, and told Pearce 'that there was no money in the contract.' He thereupon suggested six changes in the plan, which would greatly reduce the cost, and would not detract from the general utility of the building, and explained them to the county court. The court, without insisting on any reduction in the price to be paid, agreed that the changes might be made, and suggested two others, to which Ham assented, and, with the original contract of Frick thus modified, Ham and Pearce accepted the assignment of the contract and undertook to perform it. About October 1, 1869, they began work on the building, did some excavating for the foundation, and quarried and delivered some stone. This work was carried on under the supervision of Ham, and amounted in value to $690, the most of which was paid by Pearce, but the sum so paid was afterwards refunded to him. Afterwards, Ham, believing that the work of building the court-house could be sublet so as to afford a large profit to Pearce and himself, with that view entered upon a treaty with one Wickwire, and on December 8, 1869, Wickwire, having assented to the terms proposed by Ham, the firm of Ham & Pearce made a contract in writing, of that date, with Wickwire, by which he agreed to furnish the materials and build the court-house according to the modified plans and specifications, and to complete it by the first day of November, 1870, in consideration whereof Ham & Pearce agreed to pay him $27,300 in the bonds of Johnson county, at par, in four equal installments: the first, when Wickwire began the work; the second, when one-third; the third, when three-fourths; and the fourth, when all the work was completed. Ham told Wickwire that he should probably be in Vienna and see him every day; and, if so, he would render him all the assistance in his power in the erection of the building and the negotiation of the bonds. Kuykendall, as the agent of Frick, had already received from the county court one-fourth of the bonds which they were to pay for the building of the court-house, and at once turned over to Pearce bonds of the face value of between $8,000 and $9,000, and a special county order for $400. Having made the contract with Wickwire, Ham left Vienna, and about February 1, 1870, engaged in the construction of a piece of railroad in Indiana, which he had contracted to build, and did not return until the court-house was completed. Wickwire, under the supervision and inspection of an agent appointed by the county court, did, in fact, furnish the materials and build the court-house according to the plans and specifications specified in Frick's contract as subsequently modified. The work and materials seem to have been in all respects satisfactory to the county court, who accepted the court-house and paid the contract price, $38,357, in the bonds of Johnson county, at par. These bonds were delivered in installments by the county court of Kuykendall, who used them, either directly or indirectly, to pay Wickwire the amount which he was to receive for the building of the court-house, and divided the residue between himself and Pearce.

The object of the suit was to obtain an account of what was due to Ham by virtue of his said partnership and partnership enterprise, and that Pearce and Kuykendall might be decreed to pay him what might be found due on such accounting either in cash or Johnson county bonds. Upon final hearing upon the pleadings and evidence, the circuit court rendered a decree in favor of Ham against Kuykendall and Pearce for $5,001. The appeal of Kuykendall and Pearce brings that decree under review. Ham and Pearce, it is conceded on all hands, engaged as partners in the enterprise of building a court-house for the county of Johnson. It plainly appears that Ham secured such a modification of the plan and specifications of the court-house as to enable Pearce and himself to build it at a profit, and not at a loss; that after this modification the contract by w ich Frick had engaged to erect the building was assigned to Ham & Pearce by Kuykendall, acting as attorney in fact for Frick, and that Ham & Pearce sublet the contract to Wickwire on such terms as would yield them a profit of at least $10,000. Ham's interest was worth, as it turned out, not less than $5,000. Without his consent, Ham's share of the profits of his partnership venture was appropriated by Kuykendall and Pearce. These facts, alone considered, justify the decree of the circuit court, and that decree should be affirmed, unless the reasons assigned by Pearce and Kuykendall afford good ground for the appropriation by them of Ham's share in the profits of the enterprise.

The answers of both Pearce and Kuykendall, which were not under oath, alleged that after the contract between Ham & Pearce with Wickwire had been made, Pearce, on account of the absence and neglect of Ham, canceled the contract, and Kuykendall canceled the assignment to Ham & Pearce of the contract of Frick. But it appears from their testimony that this was only a mental operation. There was, in fact, no cancellation of either the Wickwire contract or of the assignment of the Frick contract. Pearce handed a copy of the Wickwire contract to Kuykendall to be canceled, but Kuykendall immediately returned it to him uncanceled for safe-keeping. The assignment of the Frick contract was allowed to remain uncanceled upon the records of the county court. What was done, as plainly appears by the testimony of Pearce and Kuykendall, was this: Wickwire, without any new contract in writing between him and Kuykendall, or between him and Kuykendall and Pearce, was allowed to perform, and did perform without any change whatever in its terms, the contract entered into by him with Ham & Pearce. Kuykendall simply took Ham's place in the enterprise, agreeing verbally with Wickwire that he would negotiate the county bonds at 90 cents on the dollar. One excuse given for this is stated by Pearce to be that when he went into the enterprise with Ham, it was with the expectation that Ham, who was a practical builder, would superintend the work, and that he himself would manage the financial affairs of the partnership. But this was the understanding when they expected to carry out the contract themselves, and the necessity for any supervision of the work or financial management mainly ended when they sublet the contract to Wickwire. He carried on the work apparently with fidelity, and certainly to the satisfaction of the county court, under the eye of a supervisor appointed by the court. The only financial duty to be performed by Pearce under the contract of Ham & Pearce with Wickwire was to draw the county bonds as the work progressed, and hand them over to Wickwire as he became entitled to them. There was no necessity for the supervision of Ham, and it is not alleged or shown that any delay or damage resulted for want of his supervision.

Some other pretext was needed for putting Ham out of the enterprise and taking Kuykendall in. This was found in the alleged fact that Ham had agreed with Wickwire to assait him in negotiating the county bonds, or enough of them to raise $5,000, and had left the neighborhood and failed to perform that part of his contract, and that Wickwire, for want of $5,000 in cash, was unable and refused to proceed with the construction of the building. Thereupon it became necessary for Kuykendall, who insisted that he was liable as surety for Frick for the building of the court-house, to take Ham's place, and negotiate the bonds so that the work might proceed to completion within the time limited by the Frick contract. But the written contract with Wickwire, which embodied the result of his treaty with Ham & Pearce, contained no provision by which the latter bound themselves to negotiate the bonds for Wickwire. He agreed to receive the bonds themselves as his compensation. Whatever Ham may have said to Wickwire about negotiating the bonds was a mere voluntary and conditional of er, and formed no part of the consideration for the contract, and the absence of Ham and his failure to help sell the bonds did not release Wickwire from his obligation to perform his contract; nor could the neglect of Ham to perform his individual promise, made not to Pearce but to Wickwire, furnish a ground upon which Pearce could legally dissolve his partnership with Ham without Ham's consent. But the testimony in the record is abundant to show that the bonds sold readily at their market price, which was not less than 90 cents on the dollars. They were the bonds of a solvent county, and bore 10 per cent. interest, payable annually, and no sort of defense to them had ever, so far as appears, been raised. There was, therefore, no reason why they should not readily sell for 90 cents on the dollar, which was the price Wickwire was willing to take for them. Anybody could have sold them. But the hollowness of his excuse for turning Ham out of his enterprise and taking Kuykendall in, is found in the fact that when Wickwire came to Pearce and told him he could not go on with the contract for want of $5,000 in money, Pearce had in his possession between $8,000 and $9,000 in Johnson county bonds, with more than one year's interest at 10 per cent. due thereon, and over $400 in a special order, turned over to him by Kuykendall as the agent of Frick, and being part of the first installment on the contract for building the court-house. These bonds and the special order were without question the property of the partnership of Ham & Pearce. All that it was necessary for Pearce to do was to sell the bonds and furnish Wickwire with the money he said he wanted, or hand him the bonds. Wickwire testifies that if the bonds had been handed him he thinks he would have begun the work. But Pearce, according to his own testimony, never offered Wickwire the bonds, or even informed him that he had them in his possession, and he does not aver or swear that he made any effort to sell the bonds; and, although he avers in his answer that he tried to raise the $5,000 for Wickwire, he does not testify to the fact in his deposition. It therefore plainly appears from the evidence that when Wickwire told Pearce that he could not begin the work for want of $5,000 in money, the latter had assets of the firm of Ham & Pearce in his hands to the amount of nearly $10,000, which could have been readily disposed of at 90 cents on the dollar; and it does not appear that Pearce made any effort to sell the bonds, or in any other way raise the sum needed.

There is nothing in the testimony to show that Pearce did anything more towards carrying on the business enterprise of the firm of Ham & Pearce than was done by Ham. He did not superintend the work, or manage the finances of the firm. His only part in the business of building the courthouse appears to have been to keep partial and fragmentary accounts for Kuykendall. It is true that, by some arrangement with Wickwire, he accepted the orders of Kuykendall, given for labor and materials, and paid them in merchandise to the amount of about $20,000; but this was his own private business as a merchant, carried on for his individual profit.

In his answer, Kuykendall bases his defense on the ground that all he did in the matter was in the interest of Frick, and as his agent, and to protect himself for his liability as surety on Frick's bond. But, when he testifies in the case, it appears that he was acting for himself only, and proposed to keep his share of the profits made in the erection of the court-house. He knew that when Wickwire was asserting that he could not begin the work for want of $5,000 in cash, Pearce had Johnson county bonds belonging to the firm of Ham & Pearce, which could have been readily turned into cash at 90 cents on the dollar, sufficient to raise between $8,000 and $9,000, for he himself had delivered these bonds to Pearce for the firm. He knew, therefore, that the excuse of Pearce, that he could not raise money for Wickwir, was a subterfuge. Both he and Pearce knew that Ham had not abandoned the enterprise, for, in the spring of 1870, Pearce visited Ham in Indiana, and proposed to him that they should allow Kuykendall an interest of one-third in their venture, and that Ham declined to accede to the proposition.

Kuykendall testifies that he sold $16,000 of the county bonds for 80 cents on the dollar, but he does not mention the name of any purchaser at that price, and no witness testifies that he ever bought a bond for less than 90 cents, except one, who says he bought two bonds, not of Kuykendall, but of one McDemot, who at first asked 85 or 90 cents on the dollar for this bond, but afterwards took 75 cents, because, as he said, 'he was bound to have some money.' But even if Kuykendall did sell a part of the bonds at 80 cents on the dollar, he cannot impose upon Ham a loss incident to his own unwarrantable interference in Ham's affairs.

In their answers both Pearce and Kuykendall aver that after the alleged cancellation of the contract between Ham & Pearce and Wickwire, Pearce had no further concern with the enterprise or interest therein; and Kuykendall avers that, as agent of Frick, he sublet the contract to Wickwire. But in his deposition Kuykendall testifies that he divided equally with Pearce the profits made on the contract, which statement is not contradicted by Pearce in his testimony. Ham had an interest in the assets and prospective profits of the firm of Ham & Pearce. It does not appear that he failed to perform any duty which, as a member of the firm of Ham & Pearce, he had undertaken to perform; or that, with good faith on the part of Pearce, the partnership enterprise could not have been successfully carried out. And however the question may be decided whether one partner may, by his own mere will, dissolve a partnership formed for a definite purpose or period, it is clear that upon such a dissolution one partner cannot appropriate to himself all the partnership assets, or turn over the share of his partner to another with whom he proposes to form a new partnership.

The case, as presented by the evidence, is this: Pearce undertook, without any just cause, to exclude Ham, his partner, from an interest in a valuable contract, in which they were equally concerned, and to take in Kuykendall in his stead, and Kuykendall, knowing that Pearce could not rightfully exclude Ham, conspired with Pearce to accomplish that purpose, and undertook to appropriate to himself the profits of the contract which of right belonged to Ham. It is clear that these actings and doings of Kuykendall and Pearce had no effect on the rights of Ham; that he is entitled to one-half of the profits of the contract. This conclusion finds ample support, if support be needed, in the case of Ambler v. Whipple, 20 Wall. 546. The profits are easily ascertained. They would have consisted of $10,000 in the bonds of Johnson county, bearing 10 per cent. interest, and at the time of the bringing of this suit there was at least three years' interest due on the bonds, making in principal and interest $13,000. Estimating the bonds to be worth only 90 cents on the dollar, the amount due Ham exceeded the decree rendered in his favor by the circuit court, even after allowing Kuykendall a reasonable compensation for any services rendered by him. The entire profits were appropriated by Pearce and Kuykendall, and they must account to Ham for his share.

Decree affirmed.

title: Pearce v. Ham/Opinion of the Court


text: Talk:Pearce v. Ham/Opinion of the Court

title: Talk:Pearce v. Ham/Opinion of the Court


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Ayers v. Watson (113 U.S. 594)

[Syllabus from pages 594-595 intentionally omitted]

W. W. Boyce, for plaintiff in error.

L. W. Goodrich, for defendant in error.

BRADLEY, J.

title: Ayers v. Watson (113 U.S. 594)


text: Talk:Ayers v. Watson (113 U.S. 594)

title: Talk:Ayers v. Watson (113 U.S. 594)


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Ayers v. Watson (113 U.S. 594)/Opinion of the Court

This was an action of trespass to try title of certain land in Bell county, Texas, originally brought in the district court of said county by Watson, the defendant in error, against the plaintiffs in error and one Anderson. The land claimed was described in the petition as a tract lying in said county of Bell, about 15 miles north-east by north from the three forks of Little river, stating the boundaries. The defendants excepted to the petition for insufficiency of law, and also pleaded not guilty. One of them, Frank Ayers, pleaded specially that he was owner in fee-simple of a tract of 11 leagues, granted by the government of Coahuila and Texas to Maximo Moreno, in the year 1833, describing its m tes and bounds; and he alleged that the land described in the plaintiff's petition, and claimed by him under some pretended patent from the state of Texas to the heirs of one W. W. Daws, deceased, was embraced within the boundaries of said 11-league grant, which was an elder and superior title. Anderson pleaded separately that he was occupying the Moreno grant as tenant of Ayers; and especially that 100 acres, including improvements, where he resided, (describing its situation,) was held by him under said Moreno title; that he had been in possession of said land for more than 12 months before the institution of this suit, adversely and in good faith; and he claimed the value of his improvements if the court should hold the plaintiff entitled to recover.

The plaintiff's original petition was filed in August, 1877, and the amended petition and pleas were filed in April, 1879. The cause was first tried in April, 1879, and again in April, 1880, and on both occasions the juries disagreed. Ayers then presented a petition for the removal of the cause to the circuit court of the United States, alleging that he was a citizen of the state of Mississippi, and that the plaintiff was a citizen of Texas, and that there could be a final determination of the controversy, so far as he was concerned. without the presence of the other defendants as parties in the cause. The court granted the petition, and the cause was removed, no objection to the removal being made either then or in the circuit court afterwards. But after the issuing of the present writ of error from this court, the plaintiffs in error, at the instance of one of whom (Frank Ayers) the cause was removed, assigned for error, among other things, that the circuit court erred in taking jurisdiction of the cause. In view of the position of the party who raises the objection, we certainly should not feel disposed to reverse the judgment on the ground of the removal of the cause, unless it was clear that the circuit court had no jurisdiction whatever to hear and determine it. The only reasons assigned before us for the want of jurisdiction are-First, that it did not appear that the matter in dispute exceeded, exclusive of costs, the value of $500; secondly, that the application for removal was too late.

The first reason has no foundation in fact. The plaintiff's petition demanded the recovery of the land and $500 damages. This was certainly a demand for more than $500, unless it can be supposed that the land itself was worth nothing at all, which will hardly be presumed. The second reason is more serious. The application for removal was beyond question too late according to the act of 1875, though not so under the act of 1866 as codified in Rev. St. § 639, cl. 2, which allows the petition for removal to be filed 'at any time before the trial or final hearing of the cause.' This language has been held to apply to the last and final hearing. A mistrial by disagreement of the jury did not take away the right of removal. See Insurance Co. v. Dunn, 19 Wall. 214; Stevenson v. Williams, Id. 572; Vannevar v. Bryant, 21 Wall. 41; Railroad Co. v. McKinley, 99 U.S. 147. But we have held that this clause of section 639 was superseded and repealed by the act of 1875. Hyde v. Ruble, 104 U.S. 407, 410; King v. Cornell, 106 U.S. 395: S.C.. 1 SUP. CT. REP. 312; Holland v. Chambers, 110 U.S. 59; S.C.. 3 SUP. CT. REP. 427. We are compelled, therefore, to examine the effect of the act of 1875 upon the jurisdiction of the court when the application is made at a later period of time than is allowed by that act.

By section 2 of the act of 1875 any suit of a civil nature, at law or in equity, brought in a state court, where the matter in dispute exceeds the value of $500, and arising under the constitution or laws of the United States, or in which the United States is plaintiff, or in which there is a controversy between citizens of different states, or a controversy between citize § of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, either party may remove said suit into the circuit court of the United States for the proper district, and when in any such suit there is a controversy wholly between citizens of different states, which can be fully determined as between them, one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper north * 22 deg. east 22,960 varas, and planted based on the constitutional grant of judicial power. The succeeding sections relate to the forms of proceeding to effect the desired removal.

By section 3 it is provided that a petition must be filed in the state court before or at the term at which the cause can be first tried, and before the trial thereof, for the removal of the suit into the circuit court, and with such petition a bond, with condition, as prescribed in the act. The second section defines the cases in which a removal may be made; the third prescribes the mode of obtaining it, and the time within which it should be applied for. In the nature of things, the second section is jurisdictional, and the third is but modal and formal. The conditions of the second section are indispensable, and must be shown by the record; the directions of the third, though obligatory, may, to a certain extent, be waived. Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed. ''Mansfield, C. & L. M. Ry. Co. v. Swan'', 111 U.S. 379; S.C.. 4 SUP. CT. REP. 510. Application in due time, and the proffer of a proper bond, as required in the third section, are also essential if insisted on, but, according to the ordinary principles which govern such cases, may be waived, either expressly or by implication. We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time within which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation. In some of the older cases the word 'jurisdiction' is often used somewhat loosely, and no doubt cases may be found in which this matter of time is spoken of as affecting the jurisdiction of the court. We do not so regard it. And since the removal was effected at the instance of the party who now makes the objection, we think that he is estopped. In Railroad Co. v. Koontz, 104 U.S. 17, we held that where the state court disregarded a petition for removal properly made, and the plaintiff continued to prosecute the suit therein, he would be deemed to have waived any objection to the delay of the defendant in entering the cause in the circuit court of the United States until the decision of the state court is reversed. We do not think that this assignment of error is well taken.

The case, on its merits, depends upon the correctness of the instructions given to the jury. By agreement of the parties, the patents or grants under which they respectively claimed, as set forth in the petition and answer, and their deraignment of title under the same, were admitted on the trial, and the controversy was reduced to the simple question of locating the surveys on the ground. The tract claimed by the plaintiff, Watson, was one-third of a league, patented to the heirs o Walter W. Daws, and its position was well ascertained and defined; and the question was whether it was or was not embraced in the older survey of the 11-league grant, owned by the defendant Ayers, which was described in the field-notes of the grant as follows, viz.: 'Situated on the left margin of the river San Andres, below the point where the creek called Lampassas enters said river on its opposite margin, and having the lines, limits, boundaries, and landmarks following, to-wit: Beginning the survey at a pecan (nogal) fronting the mouth of the aforesaid creek, which pecan serves as a landmark for the first corner, and from which 14 varas to the north 59 deg. west there is a hackberry 24 in. dia., and 15 varas to the south 34 deg. west there is an elm 12 in. dia., a line was run to the north deg. east 22,960 varas, and planted a stake in the prairie for the second corner. Thence another line was run to the south 70 deg. east, at 8,000 varas crossed a branch of the creek called Cow creek, at 10,600 varas crossed the principal branch of said creek, and at 12,580 varas two small hackberries serve as landmark for the third corner. Thence another line was run to the south 20 deg. west, and at 3,520 varas crossed the said Cow creek, and at 26,400 varas to a tree (palo) on the aforesaid margin of the river San Andres, which tree is called in English 'box-elder,' from which 7 varas to the south 28 deg. west there is a cotton-wood with two trunks, and 16 varas to the south 11 deg. east there is an elm 15 in. dia. Thence following up the river by its meanders to the beginning point, and comprising a plane area of eleven leagues of land or 275 millions of square varas.'

This tract extended backward from the river, in a northerly direction, from 12 to 14 miles, and, as that was about the distance from the river of the tract claimed by the plaintiff, the question was whether it embraced the latter. If it did, being held by an elder title, the defendant would be entitled to the verdict; if not, the plaintiff would be entitled to it. Under the concessions made by the parties the burden of proof was devolved upon the defendant to show that his 11-league tract extended so far back from the river as to embrace the plaintiff's land, or any part of it.

The evidence was that of surveyors and chain-bearers, and tended to show the following facts, namely, that, by commencing at the beginning point of the Moreno grant, (the position of which was not disputed,) and following the lines of the survey by courses and distances only, it would bmbrace nearly the whole of the Daws patent; but, run in this way, the lines would not coincide with certain well-ascertained monuments, either called for in the grant, or conceded to mark and identify the footsteps of the surveyor who originally located it in 1833. For example, the easterly line of the survey, which is identified by several miles of marked trees, and the southern terminus of which, at the river San Andres, is fixed by agreement of the parties and by monuments called for in the grant itself, is situated about 570 varas, or three-tenths of a mile, east of what its position would be if the courses and distances were followed; and, as fixed by such monuments, if the tract were made to extend as far back from the river as the defendant contends, it would contain 14 or 15 square leagues instead of 11. But the point of greatest importance was to fix the position of the northern boundary line of the tract, to ascertain whether it took in or crossed the Daws patent. This was a line described in the survey as running from the stake set in the prairie, south 70 deg. east 12,580 varas, or Mexican yards, (about 6 2/3 miles) to two small hackberry trees. Of course, these hackberries marked the northern terminus of the eastern boundary line, before mentioned, which commenced from them; and two such trees, having all the old marks and blazes requisite, were found in said eastern boundary line, (and were adopted as the north- ast corner of the tract,) in the course of an official survey, made by order of court in 1854, being at a distance of 26,960 varas from the river San Andres,-the distance given in the field-notes of the grant, based on calculation and not actual measurement, being 26,400 varas; whereas, by following the courses and distances mentioned in the grant, the easterly line, extended to the river, would be 30,760 varas in length, and, as before stated, would not coincide with the marked line conceded to be the easterly line as run at the original survey. If the northerly line of the Moreno tract should be located and fixed by taking for its eastern terminus the two hackberry trees referred to, it would not reach the plaintiff's land, but would pass south of it a full half of a mile. The defendant Ayers, however, disputed the identity of these hackberry trees with those called for in the Moreno grant, and claimed that the grant extended a mile and a half or more further north, which, indeed, it would do according to the length of the first course measured from the beginning corner; and he adduced testimony to show some marked trees north of the two hackberries, in the line of the eastern boundary, corresponding to his views, and some marks along the northerly or back line, claimed by him to be the true line.

The controversy, therefore, was substantially reduced to this alternative, namely: if the first line of the survey, taken according to its course and distance, should govern the position of the back line, the Moreno tract would include the greater part of the Daws patent; but if the two hackberry trees, discovered in 1854, were to be regarded as identical with the trees referred to in the field-notes of the survey for the north-east corner thereof, then they would fix the position of the back line, and the Moreno grant would not include any part of the Daws patent. In this state of the evidence, the judge charged the jury as follows, omitting parts not material to the controversy here:

'The original field-notes do not call for any landmark at the intersection of the western line with the back or north line of the survey. At the intersection of the back line with the eastern line two small hackberries are mentioned as serving for a landmark to designate the corner. Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made. * *  * There has been proof given you tending to show where the two small hackberries called for as the intersection of the eastern and north lines of the grant actually stood, at a distance from the lower corner on the river corresponding to the length of the eastern line of said grant. And if the proof satisfies you that the two hackberries mentioned in the testimony of the witnesses, Sam. and Pat Bigham, were the two hackberries called for and marked by the original surveyor as a corner of said grant, in that case a line drawn from the point where said hackberry stood, N. 70 W., until it intersects the western line of said grant, will bound the eleven-league grant upon the north, and if the Daws 1/3 of a league is situated wholly north of this line, it does not conflict with said eleven-league grant, and you will find for the plaintiff.

'If the proof does not satisfy you that said hackberries mentioned in the testimony are the ones called for and marked as a corner by the original surveyor, you will, from the whole proof, so fix the unmarked or disputed lines called for in the grant as in your judgment most nearly harmonize the calls with the known corners and the undisputed lines. And if, from the proof, you fix these lines so as to include all or any part of the one-third league patented to Daws, you will find for the defendant. If you are not able to fix the disputed lines, or the dis uted portions of the lines, with reasonable certainty from the proof, you may, taking the river as the base, so extend the eastern and western lines as that a line run N. 70 W., (or S. 70 E.,) connecting the extremities of said side lines, will embrace eleven leagues of land; and if said back line so run does not include any portion of the Daws 1/3 league, you will find for the plaintiff. If you can, from the proof, fix the lines of this grant in harmony with its calls and the known corners and undisputed line, the fact, if it be a fact, that said lines would include more than eleven leagues becomes wholly immaterial, and you will not consider the extent of the area further than as a circumstance to aid you in construing the other proof in the case. In seeking to fix these lines from the proof you will bear in mind that course controls distance, and marked trees control both course and distance.'

The defendant excepted to so much of the charge given as reads thus: 'If you are not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty from the proof, you may, taking the river as a base, so extend the eastern and western lines as that a line run N. 70 deg. W., (or S. 70 deg. E.,) connecting the extremities of said side lines, will embrace eleven leagues of land; and if said back line so run does not include any part of the Daws 1/3 league, you will find for the plaintiff.'

The defendant then asked the court to give the following charge, to-wit:

'That a call for two small hackberries, at the end of the distance on the course called for, having no marks on them to designate them from other trees of the same kind, and having no bearing trees to designate or locate them, is not a call for such a natural object as will control the call for course and distance. And the jury are not authorized to consider any evidence in this case about two small hackberries found by S. A. Bigham, and by him pointed out to various other persons, which are found more than a mile from the point where course and distance would place the N. E. corner of the 11-league grant.'

The court refused to give said charge. The defendant then asked the court to charge substantially as follows: (1) That the rules adopted by the courts as to the calls in a grant, giving one call superiority over another, are adopted for the purpose of identifying the actual survey made by the surveyor,-an invariable rule being that the footsteps of the surveyor must be followed, and wherever he established the lines and corners on the ground, there the survey must be located. (2) That if the jury believe from the evidence that the Moreno survey was actually made on the ground, by commencing at the beginning corner, as called for in the grant, and actually running out and tracing with a chain the upper or western line, as called for, (except the offset to avoid crossing the river;) and that the north-west corner was fixed at a point on the course called for in the grant, at the end of the distance called for; and that, from the north-west corner so established, the surveyor did actually run out and trace with the chain the distance called for, on the course called for, to the north-east corner,-they must find for the defendant.

The court refused to give the charges so requested. Leaving for after consideration the first exception, namely, that which was taken to a portion of the charge given by the court, and taking up in their order the several requests to charge, we observe that the first request, relating to the call for two small hackberries, was properly overruled. Though the field-notes of the survey did not describe them as being marked, and did not refer to other near objects as bearing upon them, yet they were natural objects actually called for at the end of the line of 12,580 varas as landmark for the third corner; and the presumption is that, being so referred to, they were actually marked as such, for that is the universal custom of all urveyors; and if two such trees, answering the description, were afterwards found in the east line of the survey, properly marked, and situated at about the proper distance from the river San Andres, as called for in the survey, it was for the jury to say, in the light of all the evidence, whether said trees, so marked and so situated, were or were not the trees called for in the field-notes; and, if they were, then they were such objects, and such a monument, as would control the call for course and distance. It is every day's experience in land trials, to establish by evidence the identity of both natural and artificial monuments called for in surveys. If the beginning point be at the mouth of a brook, or creek, where it empties into a river, evidence may be given, nay, must generally be given, to establish the identity of the brook; and when once established to the satisfaction of the jury, it has all the effect of any natural or artificial object called for in the survey, and will control courses and distances. In the present case the two hackberry trees, relied on by the plaintiff, were found in the acknowledged easterly line of the survey, in which they ought to be, (2) the evidence is that they were duly marked and blazed; (3) they were at about the proper distance from the river San Andres and from Cow creek to correspond with the field-notes of the survey, and to make the survey contain the quantity of 11 leagues, although they were nearly 4,000 varas south of the north-east corner of the tract as it would be fixed by giving to the first course of the survey its full length of 22,960 varas. Under these circumstances we think that the court was right in leaving it to the jury to determine whether the two hackberries relied on by the plaintiff were or were not the same which were called for by the survey, and in holding that if they were the same, then, as monuments, they would control the distance assigned by the field-notes to the first course. It has been repeatedly held by the supreme court of Texas, as a general rule, that natural objects called for in a grant, such as mountains, lakes, rivers, creeks, rocks, and the like, control artificial objects, such as marked lines, trees, stakes, etc., and that the latter control courses and distances. Stafford v. King, 30 Tex.270; Booth v. Strippleman, 26 Tex. 441; Bolton v. Lann, 16 Tex. 111, 112. There are exceptional cases, however, in which courses and distances may control; as where mistakes have been made by the surveyor as to objects called for, or where the calls for monuments are inconsistent with each other and cannot be reconciled, or where some other clearly sufficient reason exists for disregarding the general rule. Booth v. Upshur, 26 Tex. 71; Booth v. Strippleman, Id. 441.

The request to charge that all rules have for their object the identification of the actual survey made by the surveyor, and that it is an invariable rule that the footsteps of the surveyor must be followed, and that the lines and corners must be located where he established them, was unnecessary, inasmuch as the court did charge substantially to that effect. The court expressly said: 'Our purpose and your duty is to follow the tracks of the surveyor, so far as we can discover them on the ground with reasonable certainty, and where he cannot be tracked on the ground, we have to follow the course and distance he gives, so far as not in conflict with the tracks we can find that he made.' We do not well see how it could be more plainly stated that the main object to be reached by the whole inquiry was to ascertain and follow the actual footsteps of the surveyor.

The final request was, in substance, a request to charge that if the jury believed from the evidence that the survey was actually made on the ground according to the first and second courses and distances they must find for the defendant. As there appears to have been no doubt from the evidence that if the lines were so run the second lin, that is, the north or back line, would take in the greater part of the lot claimed by the plaintiff, the request would have been a proper one had it been qualified with the condition that the two hackberry trees were not satisfactorily identified as those called for in the Moreno grant. But without being so qualified the proposed instruction would have had a tendency to withdraw the minds of the jury from the controlling effect which the identification of those trees as the true north-east corner would properly have had on the conclusion to be reached by the jury as to the question whether the two lines referred to were, or were not, run and measured according to the field-notes. For it is perfectly clear that they could not have been so run and measured if the two hackberry trees mentioned in the field-notes were the same as those relied on by the plaintiff. The request, therefore, should have been, that if the jury did not believe the hackberries were the same, then, if they believed that the two lines were run according to the field-notes, they must find for the defendant.

It still remains to consider the correctness of that part of the charge given which was excepted to by the defendants. The substance and effect of it was that if the jury were not able to fix the disputed lines, or the disputed portions of the lines, with reasonable certainty, they might locate the back or northerly line so as to embrace 11 leagues between it and the river, and between the east and west lines as acknowledged by the parties. This was allowing the jury to make the location of the back line depend on the quantity of the land inclosed, if they could not fix it from the evidence. In this we think there was error in the charge. The whole context immediately connected with the passage excepted to, was in substance this: that if the testimony satisfied the jury that the two hackberries discovered were identical with those called for in the grant, the back or north line must start from, or end with, them, running in a course north 70 deg. west, or south 70 deg. east; but that if the testimony did not satisfy them as to the identity of the trees, then they must fix the unmarked or disputed lines so as most nearly to harmonize the calls with the known corners and the undisputed line, (that is, the east line.) If the jury were not able to fix the disputed lines, or the disputed portions of lines, then they might resort to quantity; that is, locate the back line between the two recognized side lines so as to take in 11 leagues.

Now, it seems to us that the jury should have been told that if the testimony was not sufficient to identify the two hackberries with those called for in the grant, and could not fix the north-east corner nor the back line by any other marks or monuments, then they should fix it by the courses and distances of the first and second lines of the survey, except that the second line should be extended so as to meet the recognized east line as marked and extended beyond the hackberries. This would have been in accordance with the rule that course controls distance, and that course and distance control quantity, which is correctly laid down in Stafford v. King, 30 Tex. 257, and Welder v. Hunt, 34 Tex. 44.

The statement in the first part of the charge, that the jury should follow the tracks of the surveyor, so far as they could be discovered, and when these were not to be found, they should follow the course and distance which he gives, so far as not in conflict with tracks that are found, was correct. Had this proposition been followed in the subsequent part of the charge, it would not have been open to criticism. But when directions were given to the jury in greater detail, they were not referred to the courses and distances given by the surveyor, in case they were unable to identify his tracks, (that is, in case the proof relating to the two hackberries was insufficient,) but they were told thus: 'You will, from the whole roof, so fix the unmarked or disputed lines called for in the grant as in your judgment most nearly harmonizes the calls with the known corners and the undisputed lines;' and if not able to fix these lines in this way, then to resort to the rule of quantity. This was putting the matter as if it depended on the judgment of the jury whether the lines could be run according to the survey; whereas, if not compelled by fixed monuments (such as the plaintiff claimed the hackberry trees to be) to run the second, or back line, in a particular manner, there was nothing in the way, so far as the evidence showed, of running the first and second lines according to the field notes,-only extending the second line so as to meet the east line, the position of which was known. If the north-east corner was not determined by the hackberries, there was nothing to interfere with the location of the Moreno grant in exact accordance with the field-notes, except the one thing of extending the second line far enough to meet the conceded location of the eastern boundary. It did not depend on anything requiring the exercise of judgment on the part of the jury; it was a matter of course. If the position of the eastern line had not been discovered at * all, and nothing had been known but the beginning corner, the field-notes would have furnished the only guide for locating the survey. The position of that line being known, it controlled the survey only in respect to that line, which required the second line to be extended sufficiently to reach it. But if the two hackberry trees, in that line, were also identified as the true north-east corner, then the position of the north line, and the length of the first course, would be controlled by those trees.

We think there was error in not putting it to the jury with sufficient distinctness that the course and distance of the first two lines of the survey must govern, if the evidence was not sufficient to fix the location of the northern line by identifying the two hackberries with those called for in the field-notes for the north-east corner of the survey, or by some other marks or monuments.

The judgment must be reversed, with directions to grant a new trial.


text: Talk:Ayers v. Watson (113 U.S. 594)/Opinion of the Court


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California Artificial Stone Paving Company v. Molitor

M. A. Wheaton, for Paving Co. E. M. Marble, for Molitor.

BRADLEY, J.


text: Talk:California Artificial Stone Paving Company v. Molitor


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Page:Popular tales from the Norse (1912).djvu/537

 Rh was for setting out at once, that he might see the lassie that rode on the goat. When he got down, Tatterhood led out her sister, and she was so fair and gentle, the King fell over head and ears in love with her as he stood. He brought them both back with him to the palace, and wanted to have the sister for his queen; but Tatterhood said "No;" the King couldn't have her in any "way, unless the King's son chose to have Tatterhood. That you may fancy the Prince was very loath to do, such an ugly hussy as Tatterhood was; but at last the king and all the others in the palace talked him over, and he yielded, giving his word to take her for his queen; but it went sore against the grain, and he was a doleful man.

Now they set about the wedding, both with brewing and baking; and when all was ready, they were to go to church; but the Prince thought it the weariest churching he had ever had in all his life. First, the King drove off with his bride, and she was so lovely and so grand, all the people stopped to look after her all along the road, and they stared at her till she was out of sight. After them came the Prince on horseback by the side of Tatterhood, who trotted along on her goat with her wooden spoon in her fist, and to look at him, it was more like going to a burial than a wedding, and that his own; so sorrowful he seemed, and with never a word to say.

"Why don't you talk?" asked Tatterhood, when they had ridden a bit.

"Why, what should I talk about?" answered the Prince.

"Well, you might at least ask me why I ride upon this ugly goat," said Tatterhood.

"Why do you ride on that ugly goat?" asked the Prince.