text:
The Whickham Davison v. Von Lingen/Opinion of the Court

On the first of August, 1879, a charter-party was entered into between the owners of the steam-ship Whickham and the firm of A. Schumacher & Co., composed of George A. Von Lingen, Carl A. Von Lingen, and William G. Atkinson, of which the parts material to this case are as follows: 'GRAIN CHARTER-PARTY, _____ STEAMER.

'PHILADELPHIA, August 1, 1879.

'It is this day mutually agreed between T. H. Davison, Esq.,     owner of the Br. steam-ship Whickham, of London, built 1876,     at Newcastle, of 1,124 net tons register, or thereabouts,      classed 100 A 1 in Br. Lloyds, now sailed or about to sail     from Benizaf with cargo for Phila., and Mess. A. Schumacher &     Co.: That the said steam-ship, being tight, staunch, and      strong, and in every way fitted for the voyage, with liberty      to take outward cargo to Phila. for owners' benefit, shall,     with all convenient speed, sail and proceed to Philada. or     Balto., at charterers' option, after discharge of in ward      cargo at Phila., or as near thereunto as she may safely get,      and there load afloat from said charterers, or their agents,      a full and complete cargo of grain, and/or other lawful      merchandise, excluding petroleum or its products. Vessel to     load under inspection of either American or British Lloyd's      surveyors, at her expense, and to comply with their rules. The cargo to be brought to and taken from along-side at     merchants' risk and expense, not exceeding what she can      reasonably stow and carry over and above her cabin, tackle,      apparel, provisions, and furniture, and, being so loaded,      shall therewith proceed to Queenstown, Falmouth, or Plymouth,      for orders to discharge at a safe port in the United Kingdom,      or on the continent, between Bordeaux and Hamburg, both      included, (Rouen excluded,) also Holland excluded, or as near      thereunto as she may safely get, and deliver the same, always      afloat, on being paid freight as follows: six shillings and      three pence sterring per quarter of 480 lbs. delivered, of     wheat or maize, other grain or stowage goods to pay in full      and fair proportion thereto, as customary at loading port:      ten per cent. extra if discharged on the continent, as     ordered from port of call in the United Kingdom, as above; if      ordered to a direct port of discharge on the continent, as      above, on signing bills of lading, the rate to be the same as      to the United Kingdom for orders. In full of port charges and     pilotages, (the act of God, restraints of princes and rulers,      the dangers of the seas and navigation, accidents to boilers,      machinery, etc., always excepted,) freight being paid on unloading and right delivery of the      cargo, in cash, without discount or allowance. * *  * Fifteen      (15) running days, (if the vessel be not sooner dispatched,)      commencing when vessel is all ready and prepared to receive      cargo, and written notice thereof given to charterers, to be      allowed for loading and discharging vessel, and, if longer      detained, charterers to pay demurrage at the rate of forty (      40) pounds British sterling, or its equivalent, per day. * *      *

'GEO. BLASSE, witness to the signature of

'H. L. GREGG & CO.,

'By cable authority from T. H. Davison.

'A. ALBERT, witness to the signature of A. SCHUMACHER & CO.'

On the tenth of September, 1879, the charterers filed a libel in personam, in admiralty, in the district court of the United States for the district of Maryland, against the owners of the Whickham, to recover $2,000 damages for a breach of the charter-party. The libel sets forth a copy of the charter-party, as Exhibit A, and avers that on the first of August, 1879, the libelants, 'having previously made a contract, which required them to ship during that month a cargo of grain to Europe, and requiring a vessel for that purpose, communicated these facts' to the agents of the respondents, and the charter-party, was made; that the vessel had not sailed from Benizaf at the time of the execution of the charter-party, and was not then about to sail therefrom; that by reason of such breach of the contract and warranty, and the delay in the arrival of the vessel at Philadelphia arising therefrom, the libelants were not afforded an opportunity of loading the vessel with grain, either in Philadelphia or Baltimore, during the month of August, 1879, and she did not in fact arrive in Baltimore until after the expiration of that month, nor did she arrive in Philadelphia in time to discharge her inward cargo and load with grain during that month; that the respondents did not notify the libelants of the arrival of the vessel in, and her readiness to receive cargo at, Philadelphia; and that in consequence thereof the libelants were compelled, at higher rates of freight, to charter another vessel for that purpose.

The respondents filed an answer on the first of December, 1879, alleging that at the time the charter-party was executed the vessel was about to sail from Benizaf within the meaning of its language; that she did, with all convenient speed, sail and proceed to Philadelphia, and there, without delay, discharge her in ward cargo, and as soon as discharged proceed without delay to Baltimore, and was, without delay, tendered to the libelants to load according to the charter-party, and was refused by the libelants for the sole cause, as alleged by them, that the respondents had broken the charter-party, because the vessel was not at Benizaf, about to sail, on the first of August, 1879; and that the libelants were aware of her arrival in Philadelphia, and of the time she finished the discharge of her in ward cargo. The fact of the prior contract by the libelants to ship grain to Europe, and of the communication of knowledge thereof to the agents of the respondents, is put in issue. The answer also alleges that it is not material or competent to prove the existence of such prior contract or knowledge of it by the respondents, or the inability of the libelants to fulfill it, or the chartering of another vessel. On the same day the owners of the vessel filed a cross-libel in personam, in admiralty, in the same court against the charterers, setting forth the charter-party, and alleging that the vessel, at its date, was about to sail from Benizaf; that she did, in pursuance of the charter-party, proceed, with all convenient speed, to Philadelphia with in ward cargo, and, being discharged thereof, did, in accordance with the charter-party, proceed to Baltimore, and was ready to receive cargo from the charterers, of which written notice was given to them, but they, without cause, refused to receive and load the vessel, and repudiated the charter-party on the sole ground, as by them alleged, that the vessel was not, on August 1st, about to sail from Benizaf; and that the vessel, as soon as possible after such refusal, was rechartered for a voyage from New York to Europe at a freight less by $1,912.58, and with an increase of expense of $1,000 and more. The cross-libel claims $3,000 damages.

The answer to the cross-libel, filed in January, 1880, avers that the vessel had not sailed, and was not about to sail, from Benizaf, on the first of August, 1879, but, on the contrary, had not her cargo on board, and did not complete the loading of it till the evening of August 7th, and did not sail from Benizaf till the evening of August 8th; that when she sailed from Benizaf she was not provided, and in every way fitted, for the voyage, and did not proceed to Philadelphia or Baltimore with all convenient speed, but sailed without a supply of coal for the voyage, and stopped at Gibraltar to obtain a proper supply; that the charterers received no written notice of the vessel's arrival and readiness to receive cargo from them at Philadelphia; that she did not arrive in Philadelphia or Baltimore, and the charterers did not receive written notice of her readiness to receive cargo from them until it was too late for them to use the vessel for the purposes for which they had chartered her, which purposes they communicated to the agents of the vessel at the time the charter-party was executed; and that, in consequence of such delay and default, they were compelled, before the arrival of the vessel, to charter another in her place, at a loss of $2,000, and, when she did arrive, they refused to accept and load her.

It was stipulated between the parties that the allegations made in the answer to the cross-libel should be treated as averments in the original libel, and that, under the answer to the original libel, any evidence might be offered, and any evidence taken, which might be admissible under any proper state of the pleadings. Proofs were taken, and the district court dismissed the original libel, and decreed a recovery of $4,093.18 in favor of the libelants in the cross-libel. 1 Fed. Rep. 178. The decision of the district court proceeded on the ground that the words 'about to sail with cargo,' in the charter-party, meant that the vessel was to sail as soon as with reasonable diligence she could get her cargo on board.

The charterers appealed to the circuit court from the decrees. Further proofs were taken, and that court found the following facts: '(1) The British steamer Whickham, owned by T. H. Davison and others, the defendants in the original libel, sailed from Shields on the ninth of July, 1879, bound for Lisbon, where she arrived on the 16th, and, having discharged her cargo, sailed again in ballast, on the 23d, for Benizaf, on the coast of Morocco, to take a load of iron ore, under a charter for Philadelphia. She passed Gibraltar on the 25th, and arrived at Benizaf at 4:30 P. M. of Saturday, the 26th. She began taking in cargo under the charter for Philadelphia during the forenoon of Monday, the 28th. On that day she took on board 115 tons, and on the 29th about 90 tons; but on the 30th, none; and on the 31st only four boat loads. During this time there was delay in delivering the cargo on board, as other vessels in port were entitled to precedence in loading. After the 31st the cargo was put on board with as much dispatch as could have been expected at that place, and it was all in on the seventh of August, at 5:30 P. M. An hour later the vessel sailed, and, stopping five hours at Gibraltar for coal, on the 9th, arrived at Philadelphia on the second of September. She completed her unloading at that port on the 7th.

'(2) The usual cargo at Benizaf is iron ore. In loading, a vessel lies out in the stream about a quarter of a mile from the shore, and the ore is taken to her in small boats of from five to seven tons burden each. It is then passed up the ship's sides in baskets. Two or three stages are put up between the boats and the ship's decks, and two men on each stage receive and pass the baskets. This is the only way of loading such cargo at that port.

'(3) About the first of August, Gregg & Co., a firm of ship-brokers in Philadelphia, were authorized, by cable message from the owners in England, to get a charter for the Whickham, to carry grain from the United States, on her return voyage. Not being able to do this in Philadelphia, the firm, on the first of August, telegraphed Mr. Erickson, a ship-broker in Baltimore, to look for a charter in that city. In their telegram it was said that the vessel 'had sailed, or was about to sail, from Benizaf, with cargo, for Philadelphia.' The precise form of the authority given by the owners to Gregg & Co. is nowhere shown from the evidence, further than may be inferred from the telegram TO ERICKSON.

'(4) A short time before the first of August, Schumacher & Co., of Baltimore, the original libelants, employed Mr. Foard, another ship-broker in that city, to procure for them a vessel to take a cargo of grain to Europe, which they were under contract to ship in August. He, finding that the steamers for that month were scarce, and hearing of the Whickham, took Mr. Erickson to the office of Schumacher & Co., and suggested that she might do. At the interview which then took place, it was understood by all parties that a vessel was wanted that could be loaded in August, and that no other would answer the purpose. Schumacher & Co., doubting whether the Whickham could arrive in time, wanted a guaranty that she would, but this was declined. All parties then made their calculations as to the probable time of her arrival, upon the basis of the language in the telegram, and finally Schumacher & Co. agreed to take her, first, however, providing that she might be loaded in Philadelphia or Baltimore, at their option, intending, if she did not arrive in time for Baltimore, to get her cargo, under their contract, in Philadelphia. In these calculations it was assumed by all that she would get away from Benizaf not later than the second of August, and that her voyage across would probably be about twenty days. This all occurred in Baltimore on the first of August, and it does not appear from the evidence that any of the parties, either in Philadelphia or Baltimore, knew anything of the movements of the vessel except as they were to be inferred from the telegram. There was no communication with Benizaf by telegraph, the nearest telegraphic station being at Gibraltar, which was a day's sail away.

'(5) As soon as the bargain was concluded, Erickson sent to Gregg & Co. for a charter-party in form. The immediately sent the draft of one, in which the vessel was described as 'sailed from, or loading at, Benizaf.' This Schumacher & Co. declined to accept, on the ground that their agreement was for a vessel that 'had sailed, or was about to sail, from Benizaf, with cargo, for Philadelphia.' This being communicated to Gregg & Co., they at once sent forward a new draft, to meet the wishes of Schumacher & Co., and using the language they insisted upon. This new draft reached Baltimore on the second of August, and was duly executed by all parties. This is the instrument, a copy of which is marked Exhibit A, and filed with the original libel. From this it appears that, in the printed blank which was used, there were the following words: 'Charterers to have option of canceling this charter-party should vessel not have arrived at loading port prior to _____.' These words were erased by drawing a pen through them, before signing.

'(6) Schumacher & Co. having ascertained, on the ninth of August, that the steamer passed Gibraltar outwards from Benizaf on that day, and being then satisfied that she would not arrive in time to load, either at Baltimore or Philadelphia, in August, at once set about securing another vessel, and on the 16th got one, which they afterwards loaded at an increased cost of freight to them, over what they would have been compelled to pay the Whickham, of one thousand nine hundred and eighty-eight 25-100 dollars. It is agreed that this new charter was effected on as favorable terms as it could have been in the month of August, and that, if Schumacher & Co. are entitled to recover at all, it must be for the increase in the cost of freight which they paid.

(7) The discharge of the cargo of iron ore from the Whickham was completed with dispatch, at Philadelphia, and on the seventh of September she sailed for Baltimore, where she arrived on the 9th, and was tendered Schumacher & Co., under the charter, on the 11th. They declined to accept her, for the reason that, as they claimed, when the charter-party was entered into, she had neither sailed nor was about to sail from Benizaf, within the meaning of that provision in the charter, as understood by the parties. Another charter was then obtained, but at a loss to her of four thousand and ninety-three 18-100 dollars, as of May 10, 1880. It is agreed that this charter was as favorable as any that could have been effected, and that, if her owners are entitled to recover at all, it must be for the above amount, as their loss.' The circuit court stated the following conclusions of law: '(1) That the Whickham was not about to sail from Benizaf on the first of August, within the meaning of that term as used in the charter-party; (2) that Schumacher & Co. are entitled to recover from the defendants to their libel the sum of $1,988.25, and the interest thereon from September 11, 1879; (3) that the cross-libel of T. H. Davison and others must be dismissed.'

A decree was entered in the two suits, reversing the decrees of the district court, and adjudging a recovery of $2,128.07, with interest until paid, in favor of the charterers, and dismissing the cross-libel. 5 Hughes, 221, and 4 Fed. Rep. 346. The owners of the vessel have appealed to this court. The decision of the circuit court proceeded on the ground that the language of the charter-party must be interpreted, if possible, as the parties in Baltimore understood it when they were contracting. In view of the facts that all the contracting parties understood that the vessel was wanted to load in August; that, as soon as the charterers learned that she did not leave Gibraltar until the 9th, they took steps to get another vessel; and that they declined to sign a charter-party which described the vessel as 'sailed from, or loading at, Benizaf,'-the court held that the language of the charter-party meant that the vessel had either sailed, or was about ready to sail, with cargo; and that the vessel was not in the condition she was represented, being not more than three-elevenths loaded.

The argument for the appellants is that the words of the charter-party, 'about to sail with cargo,' imply that the vessel has some cargo on board, but is detained from sailing by not having all on board, and that she will sail when, with dispatch, all her cargo, which is loading with dispatch, shall be on board; and that this vessel fulfilled those conditions. As to the attendant circumstances at Baltimore, it is urged that the charterers asked for a guaranty that the vessel would arrive in time for their purposes, and it was refused, and that the printed clause as to an option in the charterers to cancel was stricken out, and that then the charterers accepted the general words used. The words of the charter-party are, 'now sailed, or about to sail, from Benizaf, with cargo, for Philadelphia.' The word 'loading' is not found in the contract. The sentence in question implies that the vessel is loaded, because the words 'with cargo' apply not only to the words 'about to sail,' but to the word 'sailed;' and as, if the vessel had 'sailed with cargo,' she must have had her cargo on board, so, if it is agreed she is 'about to sail with cargo,' the meaning is that she has her cargo on board, and is ready to sail. This construction is in harmony with all that occurred between the parties at the time, and with the conduct of the charterers afterwards. The charterers wanted a guaranty that, even if the vessel had already sailed, or whenever she should sail, she would arrive in time for them to load her with grain in August. This was refused, and the charterers took the risk of her arriving in time, if she had sailed, or if, having her cargo then on board, she should, as the charter-party says, 'with all convenient speed, sail and proceed to Philadelphia or Baltimore.' Moreover, the charterers refused to sign a charter-party with the words 'sailed from, or loading at, Benizaf,' and both parties agreed on the words in the charter-party, which were the words of authority used by the agents in Philadelphia of the owners of the vessel. The erasing of the printed words, as to the option of canceling, was in harmony with the refusal of the owners to guaranty arrival by a certain day. So, also, when the charterers learned, on the ninth of August, that the vessel did not leave Gibraltar till that day, thay proceeded to look for another vessel. It was then apparent that the vessel had not left Benizaf by the first of August, or with such reasonable dispatch thereafter that she could have had her cargo on board, ready to sail, on the first of August.

That the stipulation in the charter-party, that the vessel is 'now sailed, or about to sail, from Benizaf, with cargo, for Philadelphia,' is a warranty, or a condition precedent, is, we think, quite clear. It is a substantive part of the contract, and not a mere representation, and is not an independent agreement, serving only as a foundation for an action for compensation in damages. A breach of it by one party justifies a repudiation of the contract by the other party, if it has not been partially executed in his favor. The case falls within the class of which Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; Oliver v. Fielden, 4 Exch. 135; Gorrissen v. Perrin, 2 C. B. (N. S.) 681; Croockewit v. Fletcher, 1 Hurl. & N. 893; Seeger v. Duthie, 8 C. B. (N. S.) 45; Behn v. Burness, 3 Best & S. 751; Corkling v. Massey, L. R. 8 C. P. 395; and Lowber v. Bangs, 2 Wall. 728, are examples; and not within the class illustrated by Tarrabochia v. Hickie, 1 Hurl. & N. 183; Dimech v. Corlett, 12 Moore, P. C. 199; and Clipsham v. Vertue, 5 Q. B. 265. It is apparent, from the averments in the pleadings of the charterers, of facts which are established by the findings, that time and the situation of the vessel were material and essential parts of the contract. Construing the contract by the aid of, and in the light of, the circumstances existing at the time it was made, averred in the pleadings and found as facts, we have no difficulty in holding the stipulation in question to be a warranty. See Abb. Shipp. (11th Ed.) by Shee, 227, 228. But the instrument must be construed with reference to the intention of the parties when it was made, irrespective of any events afterwards occurring; and we place our decision on the ground that the stipulation was originally intended to be, and by its terms imports, a condition precedent. The position of the vessel at Benizaf, on the first of August,-the fact that, if she had not then sailed, she was laden with cargo, so that she could sail,-these were the only data on which the charterers could make any calculation as to whether she could arrive so as to discharge and reload in August. They rejected her as loading; but, if she was in such a situation, with cargo in her, that she could be said to be 'about to sail,' because she was ready to sail, they took the risk as to the length of her voyage. The decree of the circuit court is affirmed.


text: Talk:The Whickham Davison v. Von Lingen/Opinion of the Court

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text:
Drennen v. London Assurance Corporation

This action was brought on two policies of fire insurance, issued March 10, 1883, by the London Assurance Corporation, of London, on certain goods, wares, and merchandise, which, it is admitted, was, at the time of insurance, the property of the firm of Drennen, Starr & Everett, doing business in the city of Minneapolis, Minnesota. The loss occurred on the twenty-ninth of July, 1883, and there was no dispute, at the trial, as to its amount. Each policy contained a provision that it should be void if the property insured 'be sold or transferred, or any change takes place in title or possession, (except by succession by reason of the death of the insured,) whether by legal process, or judicial decree, or voluntary transfer or conveyance.' Also, that 'if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, * * * it must be so represented to the corporation, and so expressed in the written part of this policy, otherwise the policy shall be void. When property has been sold and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on said property shall immediately terminate.' The defendant disputed its liability on the ground that Drennen, Starr & Everett, on the twenty-fourth of May, 1883, before the loss, admitted one Arndt as a partner in their firm, and that thereby, without its knowledge or consent, and by the voluntary act of the plaintiffs, the title, interest, and possession of the insured in the property was changed, and the policies became void. The plaintiffs denied that Arndt ever became a member of their firm or acquired any interest in the property insured. Upon this issue the proof was, substantially, as will be now stated. Arndt resided in Sandusky, Ohio. He visited Minneapolis in May, 1883, and first became acquainted with plaintiffs Drennen and Starr on or about the twentieth day of that month. Negotiations then commenced with Drennen and Starr, who acted for their firm, and resulted in the making of the following agreement:

'This agreement, made and entered into this twenty-fourth day of May, A. D. 1883, by and between E. J. A. Drennen, F. W. Starr, and Edward D. Everett, who are now members of and constitute the firm of Drennen, Starr & Everett, all of the city of Minneapolis, Minnesota, parties of the first part, and D. M. Arndt, of the city of Sandusky, Ohio, party of the second part, witnesseth: Said parties of the first part hereby agree to receive into their business said Arndt on the following terms and conditions:

'1st. Said company is to become incorporated.

'2d. Said Arndt is to pay into said firm for its use, on or before June 14, 1883, five thousand dollars.

'3d. Said Arndt is to pay into said firm for its use, on or before January 1, 1885, an additional sum of five thousand dollars.

'4th. Said Arndt is to pay said firm interest at the rate of 8 per cent. per annum on each of said sums of five thousand dollars from January 1, 1883, till each of said sums shall be paid as aforesaid, the interest on last-mentioned sum to be paid semi-annually.

'5th. If said Arndt shall be unable to pay said second $5,000 by January 1, 1885, his interest shall be decreased 50 per cent.; and until said last-mentioned sum of $5,000 shall be paid, or interest decreased as aforesaid, the liability of said Arndt therefor shall be evidenced by his promissory note, executed to said firm, bearing interest as aforesaid, and dated January 1, 1883. The business to be carried on by the new company to be formed as aforesaid shall be of the same nature as that now conducted by Drennen, Starr & Everett; the name of the new company to be formed shall be determined hereafter.

'It is understood and agreed that of the effects and rights of the firm of Drennen, Starr & Everett, Drennen owns one-half and said Starr and Everett each one-fourth thereof. All said rights and effects shall be put into the corporation to be formed as aforesaid, at their value as shown by the inventory taken January 1, 1883, less any by reason of non-payment of any claim for goods sold by them before that time, and that to the amount to be contributed as aforesaid shall be added said sum of ten thousand dollars to be paid by said Arndt as aforesaid.

'The interest and shares of the several parties to this agreement in the new company shall be in proportion to the amount contributed by each to its capital stock according to the plan aforesaid.

'When a charter shall be procured as aforesaid, 50 per cent. of the stock of said Arndt shall be held by said company, or some one in trust for it, till said second sum of $5,000, with accruing interest thereon, shall be paid. It is understood said Arndt is to attend to the book-keeping and office work of said business, and that each remaining partner of the firm of Drennen, Starr & Everett shall actively engage in the business of the new company; that no change in the name or character of the firm of Drennen, Starr & Everett shall be made until said corporation shall be formed.

'In testimony whereof, said parties hereto set their signatures the day and year first herein written.

E. J. A. DRENNEN.

'FRED. W. STARR.

'DAVID M. ARNDT.' Everett, one of the plaintiffs, was then absent from Minneapolis, but, upon his return soon after, was informed by his partners of the contents of the written agreement with Arndt. The latter, immediately after the agreement was signed, went to Sandusky, but returned to Minneapolis about the seventeenth of June, 1883. This was after Everett learned from his partners what had occurred between them and Arndt. On the eighteenth of June, 1883, plaintiffs received from Arndt the sum of $5,000, which was placed to his individual credit upon the account-books of the firm, and was by plaintiffs deposited in their bank; and on July 3, 1883, he made and delivered to them his promissory note for $5,000, which was also entered upon their account-books to his individual credit. It was accepted by them as other bills receivable in their business. This constituted the whole evidence upon which the case went to the jury. There was a verdict and judgment for the defendant.

''Geo. B. Young'', for plaintiff in error.

C. K. Davis, for defendant in error.

[Argument of Counsel from pages 54-55 intentionally omitted]

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

title: Drennen v. London Assurance Corporation


text: Talk:Drennen v. London Assurance Corporation


text:
User talk:208.93.181.72

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text:
Drennen v. London Assurance Corporation/Opinion of the Court

At the trial below the plaintiffs asked the court to instruct the jury that the written agreement with Arndt, followed by his payment of $5,000 in money, the delivery of his note for a like amount, and the entry of the money and notes to his individual credit upon the books of Drennen, Starr & Everett, did not constitute him a partner with plaintiffs, as between themselves, and did not have the effect to assign of transfer to him any title or interest in the property insured. The court refused to give that instruction, but charged the jury that 'said agreement so signed, if assented to by Everett, and the receipt by plaintiffs of the money and note, and the credit thereof on their books to Arndt, would and did constitute Arndt a partner with plaintiffs, as between themselves, from the time of the receipt by plaintiffs of said money, and had the effect to convey and transfer to and vest in Arndt a joint and undivided interest and title with plaintiffs in the insured property.' The instruction refused, as well as the one given by the court, assumes that the admission of Arndt at any time before the loss as a partner in the firm to which the policies were issued, would have involved such a transfer of the property or such a change in its title or possession as would render the policies void. Without considering whether that assumption is justified by a proper interpretation of the policies, we have now only to determine whether there was error in holding that Arndt, by virtue of the agreement of May 24, 1883, and the facts recited in the charge to the jury, became a partner in the firm of Drennen, Starr & Everett. This question is within a very narrow compass; for our inquiry is restricted to the ascertainment of the real intention of the parties as disclosed by the written agreement, considered as a whole, and by their conduct in execution of its provisions.

It appears, in the forefront of the agreement, that Arndt did not acquire an interest in the firm property immediately upon its execution; for the plaintiffs only agreed to receive him into their business on certain terms and conditions thereafter to be performed. The first of those conditions was that the company-the one to be formed by the proposed connection between the plaintiffs and Arndt-should become incorporated; then he was to pay into the firm for its use, on or before June 14, 1883, the sum of $5,000, and a like sum on the first of January, 1885, the latter to be evidenced by his note, each sum to bear interest from January 1, 1883, until paid; finally his interest was to be decreased 50 per cent. if he failed to pay the second $5,000 by January 1, 1885; 'the business'-that in which Arndt was to have an interest-'to be carried on by the new company, to be formed as aforesaid, shall be of the same nature as that now conducted by Drennen, Starr & Everett.' Then follows a declaration as to the property upon the basis of which the new company was to be organized, viz., all the rights and effects owned by Drennen, Starr & Everett, in the proportion of their respective interests to be put into the corporation to be formed, according to their value as shown by the inventory of January 1, 1883, less any loss by reason of non-payment for goods sold before that date, to which was to be added the $10,000 which Arndt agreed to pay; the interest of the several parties in the new company to be according to the amounts contributed by them, respectively, to its capital stock.

These provisions all plainly point to an interest that Arndt was to acquire, not presently, nor immediately upon the agreement being signed, but at some future period, when the conditions distinctly set out in the agreement-not some, but all of them were performed. When those conditions were satisfied, and not before, he would have been entitled to demand, as of right, the execution of the stipulation that he be received into the business then represented by Drennen, Starr & Everett, but thereafter to be represented by the new or incorporated company. The parties appear, ex industria, to have excluded the possibility of his acquiring an interest in or control over the insured property in advance of the formation of an incorporated company. Upon no other ground can the clause, 'that no change in the name or character of the firm of Drennen, Starr & Everett shall be made until said corporation shall be formed,' be satisfactorily accounted for. It may be that Drennen, Starr & Everett were unwilling to establish the confidential relations of partner with Arndt, but were willing to unite their property with his money, to be owned by a corporation in which all would become stockholders according to the amounts respectively contributed to its capital stock. Hence, perhaps, the wording of the clause last quoted. If, as the jury were in effect instructed, Arndt became a partner in the firm of Drennen, Starr & Everett prior to the loss, then the character of that firm was essentially changed; for, as partner he would have become, at and before the proposed corporation was formed, at least as to third parties, a general agent of his copartners in respect of all matters within the scope and objects of the partnership, with authority, implied from the relation itself, to participate in the control and management of the property, and, in the name of the firm, even to dispose of the entire right of all the partners for partnership purposes. The agreement is not, in our judgment, fairly susceptible of a construction which is attended by such results. The requirement that Arndt was to be received into the business upon the condition, among others, that the company should be incorporated, and the further requirement that neither the name nor the character of the firm was to be changed until the proposed corporation was formed, cannot be satisfied by any other interpretation than one which excludes him from all control or management of, or legal interest in, the property insured prior to the formation of such corporation.

It is suggested that Arndt would not have paid $10,000 in cash and notes 'into the firm for its use' unless he supposed that he would thereby acquire a present interest in the firm's property. The answer is that the want of business sagacity in such an arrangement, if such there was, cannot control the interpretation of the written agreement between the parties. Arndt, in effect, agreed to pay Drennen, Starr & Everett $5,000 on June 14, 1883, and a like sum on January 1, 1885, with interest on each sum from January 1, 1883, until paid, for the privilege of becoming, to the extent of such payments, a stockholder in a corporation thereafter to be formed, whose capital stock should represent all the effects and rights of that firm, as of the date from which Arndt was to pay interest, (less any loss arising from the nonpayment of goods previously sold,) increased by the $10,000 which Arndt agreed to pay into the old firm. Such was the whole extent of the agreement. The instruction by the court below proceeded upon the ground that the payment by Arndt in cash and money of the amount which he agreed to pay, and their receipt and entry upon the books of the firm to his credit, gave him an interest as partner in the business; whereas such facts only established the performance of some, not of all, the conditions prescribed; for, by the agreement, the formation of the proposed corporation was expressly made a condition, with the others named, to Arndt's becoming interested in the business.

In our judgment, looking at the whole agreement, the parties did not contemplate a partnership, and none was ever established between them. The agreement looked only to a corporation, the payments and other things specified being in preparation for its ultimate formation, which was an adequate, as it was the actual, consideration; consequently, there was, prior to the loss, and under the most liberal interpretation of the policies, no change in the title or possession of the property, nor any transfer thereof, that avoided the the policies. This is sufficient to dispose of the case. For the reasons given the judgment must be reversed, and a new trial had.


text: Talk:Drennen v. London Assurance Corporation/Opinion of the Court


text:
Hollister v. Benedict Burnham Manufacturing

[Syllabus from pages 60-61 intentionally omitted]

Asst. Atty. Gen. Maury, for appellant.

S. W. Kellogg and John S. Beach, for appellees.

MATTHEWS, J.


text: Talk:Hollister v. Benedict Burnham Manufacturing


text:
Hollister v. Benedict Burnham Manufacturing/Opinion of the Court

This is a bill in equity to enjoin the alleged infringement of letters patent No. 93,391, issued to Edward A. Locke for certain improvements in identifying revenue marks or labels, dated August 3, 1869, the appellees being assignees of the patentee, and the appellant, the collector of internal revenue for the Second collection district of Connecticut.

The specification and claims, with the accompanying drawings, are as follows:

'This invention is designed more especially for use in sealing liquor casks with identifying marks or labels for revenue purposes, and in such a manner that, while truly designating the contents of the cask, or giving such other indication as may be demanded, they cannot be fraudulently removed. Fig. 1 represents a printed paper revenue stamp, the circular portion at the right hand being the stamp proper, which is applied to the cask or box, and the portion at the left hand being the 'stub,' or that portion retained by the government official. Fig. 2 represents a separate strip, which is shown in Fig. 1 as attached at its left end to the stub of the paper stamp proper, in such manner that its coupons may be readily cut off and permanently affixed to the stamp proper when the latter is secured to the cask. Fig. 3 represents a metallic piece or strip, shown as detached, and before being applied to the stamp. The main body of the sheet of paper being printed substantially as shown, so as to designate by a letter of the alphabet, or otherwise, the appropriate series, and with blanks for the particular number of each series, and also with a number indicating numbers of gallons, etc., in tens, has also a series of numbers, from one to nine, inclusive, any one of which may be punched out by the proper official, in accordance with the actual number of gallons contained in the vessel. Thus, if 126 be the proper number of gallons, and 120 be the whole number printed upon the particular stamp, the officer, in order to indicate 126, would punch through the digital number 6, both upon the circular stamp and upon its 'stub' or counter-check.

'The piece shown in Fig. 3, I prefer to make of thin metal, because more readily embossed or impressed with permanent or ineffaceable characters, and because less destructible in handling and transmission, after it shall have been torn away from the stamp. This piece (also shown in part in Fig. 1) may be conveniently made of oblong, or any appropriate form, its conditions being merely, so far as concerns its shape, that it be of sufficient size to extend beyond the opening made in the paper for the exposure of the letters and figures made on it, and be capable of being retained in its place between the paper and another backing-piece of paper, the two pieces of paper being gummed together for this purpose. This backing-piece I prepare with dried gum on its outer face, that the stamp may be always ready by merely moistening the gum for instant application to the cask. The strip shown in Fig. 2, I secure in part to the left side of the paper by gumming its remaining portion, upon which are coupons for the units, being dry-gummed on its under side, so that, when the proper number of gallons has been * determined, the officer, upon cutting off the coupon at the figure designating the unit or digital number required, may, by moistening it, instantly, and without cutting or injuring the stamp, apply it to the stamp, while the stub or remaining portion of the slip will correspondingly indicate thereon just what has been so detached and applied to the stamp. Thus, to indicate 126 gallons, 120 being the whole number of the stamp, the coupon slip is cut off between the numbers 6 and 7, and the piece so cut off is moistened on the back and permanently attached to the face of the stamp, the 6 being the significant figure of the coupon.

'The mode of applying a stamp so made to a cask may be, by way of greater protection against liability to damage or accident, as shown and described in m patent No. 58,847; that is, by boring a shallow depression in the wood of the cask or case, and after affixing the stamp by its gum to the bottom of this depression, then placing over it a ring having down-turned edges, and, by pressing the same, forcing its outer edge into the wood. Or the wood may have an annular groove cut therein to receive the edge of the ring when so forced home. Instead of making the removable piece out of metal, or of making it in a piece separate from the stamp, it may be made of the same piece of paper of which the stamp is composed by simply having its outline perforated after the manner of postage stamps, but ungummed at its back, so as readily to be torn away and detached from the stamp. Although I have shown and described a lining-paper, between which and the stamp or surface-paper the metal slip is held, yet I may dispense with such lining and employ a thicker paper for the stamp, the metal strip in such case, if preferred, being confined or held to it by having its ends pass through slits made in the paper for such purpose. Or the metal piece may have points or projections at its ends or corners, or elsewhere, which may be forced or passed through the paper and clinched on the under side. For the purpose of readily separating the circular stamp from the sheet, I perforate it about its periphery with any suitable slits, cuts, or openings adapted to the thickness or texture of the paper. I also prefer to have the stamps prepared with blanks and dotted lines, on which the collector, gauger, and store-keeper may place their signatures, as shown in Fig. 1.

'It is to be understood that the metallic or other slip, the stub or check part of the stamp paper, and also the stub of the coupon piece, are all to be consecutively numbered alike for each alphabetical series, the capital letter, A, in the drawings indicating the alphabetical series, and the number immediately to the right thereof indicating a number in the consecutive numbers of such series. For convenience I prefer to have the stamps, after being printed, bound up in book form, after the manner of merchants' or bankers' check-books, so that each stamp, as cut out, shall leave in the book its corresponding marginal piece or stub, having thereon a record of letters, figures, marks, etc., according with those upon such stamps.

'I claim (1) a stamp, the body of which is made of paper or other suitable material, and having a removable slit of metal or other material, displaying thereon a serial number or other specific indentifying mark corresponding with a similar mark upon the stub, and so attached that the removal of such slip must mutilate or destroy the stamp. (2) In a paper revenue stamp for indicating the contents of a cask, and having thereon a number designing the number of gallons or other measure, providing the stamp, and also its stub or check-piece, with corresponding digital numbers, to be punched out to indicate the units, substantially as described. (3) In combination with a paper stamp having a check-piece or stub, from which it is detached when applied for use, a coupon slip, whose coupons are to be secured to the face of the stamp, as and for the purpose described.'

The following is a copy of the face of the tax-paid internal revenue stamp used by the appellant, and claimed to be an infringement of the patent:

As described by the complainant's witnesses, this stamp 'is composed of a single thickness of paper, on the face of which the number and registering marks are conveniently placed. On the back of this stamp is a piece of paper somewhat wider than the surface, on which the number and registering marks are printed. The two edges of this back-piece are caused to adhere to the back of the stamp, one above and the other below that portion of the surface which indicates the number, contents, etc. The back of the stamp, between the two edges of this strip or back-piece, is free and loose. The bject of this is that when the back of the stamp is coated with adhesive material and attached to the barrel, that portion of the surface of the stamp which is covered by the strip or back-piece will not adhere to the barrel; hence, after the stamp is secured to the barrel, that portion of the stamp on which are the registering marks may be removed, and preserve the marks and figures thereon, the removal of that part defacing the stamp as well as preserving the record, and this can be done because that portion of the stamp which is removed is prevented from adhering to the barrel. To remove this portion it is only necessary to separate that portion from the body at its two edges.' This is marked in the record as 'Complainant's Exhibit Hollister Revenue Stamp.' The present controversy relates to the first claim of the Locke patent, in respect to which alone the decree appealed from established an infringement. It is as follows: 'A stamp, the body of which is made of paper or other material, and having a removable slip of metal or other material, displaying thereon a serial number or other specific identifying mark corresponding with a similar mark upon the stub, and so attached that the removal of such slip must mutilate or destroy the stamp.' One of the defenses relied on by the appellant is thus stated in the answer, and, in matter of fact, is by stipulation admitted to be true: 'First. That any and all acts complained of in said bill by the said petitioner, as done by the respondent, were done and performed by him in the discharge of his duties as collector of internal revenue for the United States for a designated collection district of the state of Connecticut, and by direction of the commissioner of internal revenue, an officer of the treasury department of the United States; that any revenue stamps by him used have been furnished by the bureau of internal revenue, of which said commissioner is the official head, for use in the discharge of said duties as collector, and the same have been used solely as a means of collecting the taxes due to the United States, which said taxes have been imposed by the laws of the United States, and the manner of said collection, as followed by said collector, regulated and authorized by such laws; that said respondent has acted as such collector by virtue of legal appointments thereto by the president of the United States, duly confirmed by the senate of the United States, for and during all the times mentioned in said bill of complaint.'

It was authoritatively declared in James v. Campbell, 104 U.S. 356, that the right of the patentee, under letters patent for an invention granted by the United States, was exclusive of the government of the United States as well as of all others, and stood on the footing of all other property, the right to which was secured, as against the government, by the constitutional guaranty which prohibits the taking of private property for public use without compensation; but doubts were expressed whether a suit could be sustained, such as the present, against public officers, or whether a suit upon an implied promise of indemnity might not be prosecuted against the United States by name in the court of claims. If the right of the patentee was acknowledged, and without his consent an officer of the government, acting under legislative authority, made use of the invention in the discharge of his official duties, it would seem to be a clear case of the exercise of the right of eminent domain, upon which the law would imply a promise of compensation, an action on which would lie within the jurisdiction of the court of claims, such as was entertained and sanctioned in the case of U.S. v. Great Falls Manuf'g Co., ante, 306, decided at the present term. And it may be that, even if the exclusive right of the patentee were contested, such an action might be brought in that court involving all questions relating to the validity of the patent; but as we have concluded to dispose of the present ap eal upon other grounds, it becomes unnecessary to decide the question arising upon this defense. It is referred to only for the purpose of excluding any inference that might be drawn from our passing it over without notice.

The course of business in the collection of the revenue upon distilled spirits, so far as the use of these stamps is involved, is explained by Mr. Chapman, a witness for the defendant below, who had been chief of the stamp division in the internal revenue office. He says:

'After spirits have been produced, they are drawn from the cistern into the barrels, and there is attached to each barrel a stamp called a warehouse stamp, together with certain marks and brands put on simultaneously with the stamp; this stamp is an oblong piece of paper properly engraved, with blanks in which are inserted the numbers of the package, the number of wine and proof gallons contained therein, name of the distiller, location of the distillery, and are signed by the storekeeper and gauger on duty at the distillery. This stamp is merely used as a check, and does not represent a tax; the stamp consists of but one piece of paper about three by two inches, and is attached by paste or other adhesive material, and by tacks at the corner and center, by the gauger on duty at the distillery. This stamp (warehouse) has been in use from 1868 to the present time, and no change has been made in the construction of the same, the only changes being in the quality and kind of paper used and the designs of the engraving.

'The package is then removed to the bonded warehouse of the distillery, where it remains until the distiller files with the collector of the district a paper, called an entry for withdrawal; this paper is accompanied by the amount of the tax upon the spirits contained in the package; the collector thereupon fills out, signs, and forwards to the gauger the tax-paid stamp, which is a piece of paper nearly square, upon the face of which is engraved the body of the stamp, together with nine coupons, of which stamp and coupons, with the stub which remains in the books from which the stamp is cut, complainant's Exhibit Hollister Revenue Stamp is a copy. From 1868 until about 1871, this stamp, which has always been called the tax-paid stamp, was constructed of two pieces of paper; before the stamp was printed, the paper of which the body of the stamp was composed was perforated with a round aperture, about one and a half inches in diameter; to the back of the paper was then attached, by paste or mucilage, a piece of tissue paper, completely covering said aperture; the stamp was then printed, the engraving covering both the body of the paper and so much of the tissue paper as appears through the aperture. From about 1871 to 1875 the stamp was composed of but one piece of paper, the use of the tissue paper and the aperture having been abandoned. In August, 1871, there was added to the tax-paid stamp a piece of paper, which was pasted by its edges upon the back thereof, as shown in complainant's Exhibit Hollister Revenue Stamp. Stamps of the latter character have been in use from August, 1875, to this date.

'On receipt of the tax-paid stamps by the gauger, he proceeds to affix them to the head of the barrel, together with certain marks and brands; he, together with the storekeeper, having first signed the same at the places indicated in complainant's Exhibit Hollister Revenue Stamp. The gauger puts this stamp on the barrel by means of some adhesive material and tacks; he then cancels it by the use of a stencil-plate, imprinting across the face of the stamp and extending over each side upon the head of the barrel waved lines; he also imprints upon the head with a stencil-plate his name and official designation. The whole surface of the stamp is then varnished with a transparent varnish; no varnish can be used which is oily enough to affect the paste. The package is then removed from the warehouse and passes into the custody of the distiller or owner. If t e owner desires to purify the contents of the package, it is then taken to the establishment of a duly authorized rectifier of distilled spirits. The rectifier then notifies the collector of the district that he desires to dump, for rectification, the contents of certain specified packages, whereupon the collector directs a gauger to proceed to the rectifying establishment and gauge the specified packages. When the packages are gauged, the gauger is required by regulations to cut from the tax-paid stamp a designated portion thereof, and transmit the same to the collector, with a report of his operations. The packages are then dumped * into the tubs of the rectifier, and the identity of their contents lost. * *  * The portion of the tax-paid stamp detached or cut and forwarded by the gauger, as heretofore described, includes the serial number of the stamp, the date on which the tax was paid, and the number of proof gallons; the number of the cask, the location of the warehouse, and the person or firm to whom delivered, and the signature of the collector; the part so cut out is over the paper back.'

The employment of the paper backing in the stamp used by the appellant, whereby the part to be cut out is prevented from adhering to the head of the barrel, and the arrangement of a part of the stamp so as to indentify the package with that described in the stub, the removal of which destroys the stamp so that it cannot be used again, constitutes the alleged infringement of the first claim of the Locke patent, which covers every stamp within that description.

The counsel for the appellee describes 'the Locke stamp as a combination of three parts: (1) a part which is designed to become a stub when the stamp proper is separated therefrom, and displays a serial number; (2) a constituent part of the stamp proper which is designed for permanent attachment to the barrel; (3) a constituent part of the stamp proper displaying the same identifying serial number as the stub, which part, after the stamp proper has been affixed to the barrel, bears such relation to the permanent part that it can be so removed therefrom as to retain its own integrity, but mutilates and thereby cancels the stamp by its removal.' In this combination it will not be questioned that the first and second elements were well known, and that the third, so far as its contents are identical with those on the stub, is not new. The question turns on that feature of the third element where, by a removable part of the stamp proper, the contents of which indentify the stamp with the stub after the stamp has been attached, can be so removed as to retain its own integrity, but mutilates and thereby cancels the stamp by its removal. This is what we ascertain to be the precise idea embodied in the invention described and claimed in the patent, and which, although we find to be new in the sense that it had not been anticipated by any previous invention, of which it could therefore be declared to be an infringement, yet is not such an improvement as is entitled to be regarded in the sense of the patent laws as an invention.

In reaching this conclusion, we have allowed its due weight to the presumption in favor of the validity of the patent arising from the action of the patent-office in granting it; and we have not been unmindful of the fact, abundantly proven, and indeed not denied, that the adoption of the present tax-paid stamp, in lieu of that previously in use by the internal revenue bureau, has proven its superior utility in the prevention of frauds upon the revenue. The testimony on that point of the commissioner of internal revenue from his official reports is quite conclusive. In his report for 1875, he mentions the adoption of 'new regulations in regard to the use of tax-paid stamps, by which a portion of the stamp is cut out at the time of dumping and returned with the gauger's report,' and says: 'This effectually destroys the stamp and prevents its reuse, while, at the same time, a sufficient mount of the engraving is shown upon the slip to determine whether the stamp is genuine;' and, in 1876, that official reported that 'the plan of requiring the return of a portion of the tax-paid stamps, whenever a package to which it is attached is dumped for rectification, has been found to be such a valuable prevention of fraud that it has been extended to include all stamps for rectified spirits and wholesale liquor dealers' stamps. These three varieties of stamps for distilled spirits are now prepared at a trifling additional cost, with a paper back affixed to each in such a way that the portion of the stamp containing all the important data can be cut therefrom and filed with the commissioner or collector, thus furnishing conclusive evidence of the destruction of the stamp, (rendering its reuse impossible,) and furnishing also evidence as to the contents of the package bearing the stamp. It is believed that this system affords the government a very effectual protection against the perpetration of frauds in connection with the collection of the tax on distilled spirits.'

Such an increased utility, beyond what had been attained by devices previously in use, in cases of doubt, is usually regarded as determining the question of invention. But in the present case we are not able to give it such effect. No change, it will be observed, was made in the character of the stamp, so far as the relation between the stamp proper and the stub is concerned, nor in the identifying marks which constituted the written and printed matter upon both; and the expedient of using a paper backing which prevented the adhesion to the package of the part intended to be detached and removed, it is manifest would be adopted by any skilled person having that end in view. The idea of detaching that portion of the stamp, with the double effect of destroying the stamp by mutilation and preserving the evidence of the identity of the package on which it had been first placed in use, which is all that remains to constitute the invention, seems to us not to spring from that intuitive faculty of the mind put forth in the search for new results or new methods, creating what had not before existed, or bringing to light what lay hidden from vision; but, on the other hand, to be the suggestion of that common experience which arose spontaneously, and by a necessity of human reasoning, in the minds of those who had become acquainted with the circumstances with which they had to deal. Cutting out a portion of the stamp, as a means of defacing and mutilating it so as to prevent a second use, was matter of common knowledge and practice before the date of this patent; and cutting out a particular portion on which the identifying marks had been previously written or printed was simply cutting a stub from the stamp instead of cutting the stamp from the stub, as before. So that when the frequency and magnitude of the frauds upon the revenue, committed by the removal of tax-paid stamps from packages on which they had been originally placed by the officer to others surreptitiously substituted for them, or by emptying the packages of their original contents and fraudulently refilling them with spirits on which no tax * had been paid, attracted the general attention of the revenue department, the answer to the problem of prevention was found by immediate inference from the existing regulations, in the adoption of the expedient now in question. As soon as the mischief became apparent, and the remedy was seriously and systematically studied by those competent to deal with the subject, the present regulation was promptly suggested and adopted; just as a skilled mechanic, witnessing the performance of a machine, inadequate by reason of some defect, to accomplish the object for which it had been designed, by the application of his common knowledge and experience perceives the reason of the failure and supplies what is obviously wanting. It is but the display of the expected skill of the calling, and invo ves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice; and is in no sense the creative work of that inventive faculty which it is the purpose of the constitution and the patent laws to encourage and reward. On this ground the decree of the circuit court is reversed, and the cause remanded, with directions to enter a decree dismissing the bill; and it is so ordered.


text: Talk:Hollister v. Benedict Burnham Manufacturing/Opinion of the Court


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Hess v. Reynolds

Henry Newbegin, for plaintiff in error.

E. M. Marble, for defendant in error.

This is a writ of error to the judgment of the circuit court for the Eastern district of Michigan, remanding a cause to the state court, from which it had been removed into the circuit court. The record shows that plaintiff in error, who was a citizen of Missouri, prosecuted his claim in the probate court of Ionia county, Michigan, against the estate of Warren Sherwood, deceased, of which William Reynolds had been appointed administrator. The claim being resisted, was, in due course of proceeding, referred to commissioners appointed by the probate judge, who reported against its allowance. Thereupon Hess, as the Michigan statute authorized, appealed to the circuit court of Ionia county, where he was entitled to a trial by jury. The judge of that court having been counsel for the administrator in the case, it was by proper order removed to the circuit court of Jackson county after a delay of several years, and from that court into the circuit court of the United States, on the affidavit of Hess that he had reason to believe, and did believe, that, from prejudice and local influence, he would not be able to obtain justice in said state court.

[Argument of Counsel from pages 74-75 intentionally omitted]

MILLER, J.

title: Hess v. Reynolds


text: Talk:Hess v. Reynolds

title: Talk:Hess v. Reynolds


text:
Hess v. Reynolds/Opinion of the Court

The first objection to the removal is that the proceeding in the state court, which was commenced in the probate court to obtain payment of a claim against the estate of a decedent, then under administration in that court, was within the exclusive jurisdiction of the state court, and could not be transferred to a court of the United States. This proposition has been often asserted here and as often denied. It is not denied that the laws of the states are valid which provide for the descent and distribution of property of a decedent, for the proof and registration of wills, for the collection of debts due to the decedent, and the payment of the debts which he owed at the time of his death. Nor is it denied that such courts as are usually called probate courts are rightfully vested in a general way with authority to supervise the collection of these debts and other assets, the payment of the debts of the decedent, and to make distribution of the remainder. But the estate of a decedent is neither a person nor a corporation. It can neither sue nor be sued. It consists of property, or rights to property, the title of which passes on his death, with right of possession, according to the varying laws of the states, to executors of a will, administrators of estates, heirs or devisees, as the case may be.

These parties represent in their respective characters the rights which have devolved on them in any controversy, legal or equitable, which may become a matter of judicial contest with other parties having conflicting interests. In regard to controversies with debtors and creditors, the executor, if there be a will, or the administrator, if one has been appointed, represents the rights and the obligations which had been those of the deceased. The right of the administator or executor to sue in the ordinary courts of the country to enforce the payment of debts owing the decedent in his life-time, and unpaid at his death, has always been recognized; and it is believed that no system of administering the estates of decedents has changed this principle. The courts of the United States have always been open to such actions when the requisite citizenship exists, and for this purpose the citizenship of the administrator or executor controls, and not that of the decedent. So, also, until recent times, the administrator or executor was liable to be sued in the ordinary courts, whether state or national, on obligations contracted by the decedent, and such is probably the law of most of the states of the Union at this day. To such a suit the administrator could, at common law, have pleaded that there were no assets in his hands unadministered, or he could have denied the cause of action set up by plaintiff. How far a denial of assets would be a good plea now depends on the statutes of the various states, and the various modes of obtaining equality of distribution among creditors where there is not enough to pay all. Such suits, in the absence of any controlling law, can be brought, and have been brought, in the courts of the United States where the requisites of jurisdiction between the parties exist. This jurisdiction of the courts of the United States, in controversies between citizens of different states, cannot be ousted or annulled by statutes of the states assuming to confer it exclusively on their own courts.

It may be convenient that all debts to be paid out of the assets of a deceased man's estate shall be established in the court to which the law of the domicile has confided the general administration of these assets. And the courts of the United States will pay respect to this principle in the execution of the process enforcing their judgments out of these assets, so far as the demands of justice require. But neither the principle of convenience nor the statutes of a state can deprive them of jurisdiction to hear and determine a controversy between citizens of different states when such a controversy is distinctly presented, because the judgment may affect the administration or distribution in another forum of the assets of the decedent's estate. The controverted question of debt or no debt is one which, if the representative of the decedent is a citizen of a state different from that of the other party, the party properly situated has a right, given by the constitution of the United States, to have tried originally or by removal in a court of the United States, which cannot be defeated by state statutes enacted for the more convenient settlement of estates of decedents.

These views have been expressed by this court in many cases where they were proper grounds for the decisions made. The latest of them, in which the others are reviewed with care, is that of Ellis v. Davis, 109 U.S. 485, S.C.. 3 SUP. CT. REP. 327, in which the opinion was delivered by Mr. Justice MATTHEWS. Among the cases there cited with approval is that of Gaines v. Fuentes, 92 U.S. 10. That was a suit brought in the Second district court for the parish of Orleans, which, by the laws of Louisiana, was vested with jurisdiction over estates of deceased persons and probate of wills. It was brought to annul the will of Daniel Clark, and to set aside the decree of the court by which it was admitted to probate. Application for removal of the case into the circuit court for the United States, on the ground of prejudice and local influence, under the act of 1867, as in the case now before the court, was refused, though the requisite citizenship of the parties was shown. The action of the district court having been affirmed in the supreme court of that state, the case was brought here on the allegation of error in refusing to grant the order of removal. The same argument was advanced in favor of the exclusive jurisdiction of the state court as in the brief of the counsel in the present case. But this court said: 'The constitution imposes no limitation upon the class of cases involving controversies between citizens of different states to which the judicial power of the United States may be extended; and congress may, therefore, lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the federal judiciary.' 'And if by the law obtaining in the state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process in a federal court, where the parties on one side are citizens of the state of Louisiana, and on the other citizens of other states.' This court reversed the judgment of the Louisiana courts, and held that the application for the removal should have been granted, and ordered the case to be remanded to the parish district court, with directions to make the transfer. The cases of Payne v. Hook, 7 Wall. 425, and Hyde v. Stone, 20 How. 170, are to the same effect. In the latter case the court said, with much force and propriety, that it 'had repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states which prescribe modes of redress in their courts, or which regulate the distribution of their judicial powers.'

The case of Boom Co. v. Patterson, 98 U.S. 403, is also in point. That was a special proceeding to condemn property under laws of the state of Minnesota in the exercise of the right of eminent domain, which, commencing before special commissioners to assess damages, was by appeal brought into a court of general jurisdiction, and from there removed, rightfully as this court held, into the circuit court of the United States. The case before us was one removable into the court of the United States.

The next objection to the removal is that the application was made too late. If the case is only removable under the act of 1875, and if that statute repeals or supersedes all other statutes for the removal of causes from the state courts into the circuit courts of the United States, then the motion was made too late, for there was a period of five years in the circuit court of Ionia county during all which time the case stood for trial. See Pullman Palace Car Co. v. Speck, ante, 374. But though such has often in argument been asserted to be the effect of the act of 1875, the language of the repealing clause of it is not so comprehensive. That language is 'that all acts and parts of acts in conflict with the provisions of this act are hereby repealed.' This implies very strongly that there may be acts on the same subject which are not thereby repealed. The usual formula of a repealing clause intended to be universal is that all acts on this subject, or all acts coming within itspur view, are repealed, or the acts intended to be repealed are named or specifically referred to. In this case the effect of the statute as a repeal by implication, arising from inconsistency of provisions, or from the supposed intention of the legislature to substitute one new statute for all prior legislation on that subject, is not left to its usual operations, but the statute to be repealed must be in conflict with the act under consideration or that effect does not follow. And this was wise, for congress well knew that there were many provisions of the laws for such removals which might or might not come under the provisions of the act of 1875, and which might be exercised under regulations different from that statute, and accordingly these were left to stand, so far as they did not conflict with that act.

The provisions of the act of 1867, by which removals are authorized on the ground of prejudice and local influence, is embodied in the Revised Statutes, in the third clause of section 639. It declares that in such a case, with the requisite citizenship, when the non-resident party files the proper affidavit, at any time before the trial or final hearing of the suit, it shall be removed. We do not think this provision is embraced in the act of 1875, which says nothing about prejudice or local influence, and is not in conflict with that act. We are of opinion that this clause of section 639 remains, and is complete in itself, furnishing its own peculiar cause of removal, and prescribing, for reasons appropriate to it, the time within which it must be done. One of these reasons is that the prejudice may not exist at the beginning, or the hostile local influence may not become known or developed at an earlier stage of the proceedings. Congress, therefore, intended to provide against this local hostility, whenever it existed, up to the time of the trial. It is said, however, that the trial spoken of had taken place before the commissioners of Ionia county, to whom the case had been referred. But we do not look at that proceeding as a trial within the meaning of the statute. It was merely a report, subject to be affirmed or rejected by the probate judge, and, by the express terms of the statute, subject to a right of appeal to a court in which a trial by jury could be had. The latter was the trial or final hearing of the suit which would conclude the right of removal; and until such trial commenced, the right of removal under this provision remained.

It is argued that the cause should have been removed to the circuit court for the Western district of Michigan instead of the Eastern, because the county of Ionia, in which the suit originated, is in the former. But the language of the removal statute is that suits shall be removed into the circuit court of the district where such suits are pending. Undoubtedly this means where they are pending at the time of removal. This suit was not then pending in the Western district of Michigan, but in the county of Jackson, which is in the Eastern district of that state. We are of opinion that the case was properly removed from the circuit court of Jackson county into the circuit court of the United States for the Eastern district of Michigan, and that that court erred in remanding it. Its judgment to that effect is therefore reversed, with instructions to proceed in the case according to law.

Mr. Justice GRAY dissents.

title: Hess v. Reynolds/Opinion of the Court


text: Talk:Hess v. Reynolds/Opinion of the Court


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Polleys v. Black River Imp Company

S. U. Pinney, for motion.

M. P. Wing and I. C. Sloan, against motion.

MILLER, J.

title: Polleys v. Black River Imp Company


text: Talk:Polleys v. Black River Imp Company

title: Talk:Polleys v. Black River Imp Company


text:
Polleys v. Black River Imp Company/Opinion of the Court

This is a writ of error to the circuit court of Wisconsin for the county of La Crosse, and a motion is made to dismiss it. The first ground of the motion is that the writ should have been directed to the supreme court of the state, and cannot be rightfully directed to the circuit court of the county. It appears that the defendant in error here was plaintiff in the circuit court of La Cross county, and brought its action against Polleys and others for relief in regard to their obstructing the navigation of Black river and its branches. The circuit court denied the relief and dismissed the bill. On appeal, the supreme court of the state reversed this judgment and delivered an opinion that plaintiff was entitled to relief in the premises; and it made an order remanding the case to the circuit court, with directions 'to enter judgment in accordance with the opinion of this (that) court.' It appears by the cases cited to us, and by the course of proceedings in such cases in the Wisconsin courts, that the record itself is remitted to the inferior court, and does not, nor does a copy of it, remain in the supreme court. Though the judgment in the circuit court was the judgment which the supreme court ordered it to enter, and was in effect the judgment of the supreme court, it is the only final judgment in the case, and the record of it can be found nowhere else but in the circuit court of La Crosse county. To that court, therefore, according to many decisions of this court, the writ of error was properly directed to bring the record here for review. Gelston v. Hogt, 3 Wheat. 246; Atherton v. Fowler, 91 U.S. 146.

It is insisted that the writ of error was not brought within time. Section 1008 of the Revised Statutes declares that 'no judgment, decree, or order of a circuit or district court, in any civil action at law, or in equity, shall be reviewed in the supreme court, on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree, or order.' This rule is applicable to writs of error to the state courts in like manner as to circuit courts. Scarborough v. Pargoud, 108 U.S. 567; S.C.. 2 SUP. CT. REP. 877. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the judiciary act of 1789, it is said 'that the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress must be calculated accordingly.' This language is repeated in Mussina v. Cavazos, 6 Wall. 355, and in Scarborough v. Pargoud, supra.

Though the writ of error in this case seems to have been issued by the clerk of the circuit court of the United States on the tenth day of May, 1884, and is marked by him for some reason as filed on that day, it is marked by the clerk of the court to which it is directed, namely, the circuit court of La Crosse county, as filed on the twenty-ninth day of that month. It is not disputed that this is the day it was filed in his office. This must be held to be the day on which the writ of error was brought. The judgment which we are asked to review by this writ was entered in the circuit court of La Crosse county, May 24, 1882. It is signed by the judge on that day, and is expressly dated as of that day, and it is marked filed on that day over the signature of the clerk of that court. This is the judgment, the entry of the judgment, and on that day the plaintiff in error had a right to his writ, and on that day the two years began to run within which his right existed.

It seems that the courts of Wisconsin, either by statute or by customary law, keep a book called a judgment docket. In this book are entered, in columns, the names of plaintiffs who recovered judgment, and the defendants against whom they are recovered. In another column is entered the amount of the principal judgment and the costs and the date of the judgment itself. This record is kept for the convenience of parties who seek information as to liens on real estate or for other purposes. This docket, however, is made up necessarily after the main judgment is settled and entered in the order-book, or record of the court's proceedings, and it may be many days before this abstract of the judgment is made in the judgment docket, according to the convenience of the clerk. It is the record of the judicial decision or order of the court found in the record-book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitations begins to run. It follows that the writ of error in this case was brought five days after the two years allowed by law had expired; and it must be dismissed. So ordered.


text: Talk:Polleys v. Black River Imp Company/Opinion of the Court


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Pullman Palace Car Company v. Speck

Huntington W. Jackson and Edward S. Isham, for appellants.

A. M. Pence, for appellees.

MILLER, J.

title: Pullman Palace Car Company v. Speck


text: Talk:Pullman Palace Car Company v. Speck


text:
User talk:Diupwijk

--Longfellow (talk) 16:53, 9 November 2010 (UTC)

title: User talk:Diupwijk


text:
Pullman Palace Car Company v. Speck/Opinion of the Court

This is an appeal from an order of the circuit court for the Northern district of Illinois, remanding to the state court a case which had been removed from that into the circuit court. The removal was prayed for in the petition, on the ground that the controversy was between aliens and citizens of the state of Illinois, and one of the points argued before us is that other parties to the suit, with interest opposed to that of the appellants, at whose instance the removal was made, are citizens also of Illinois, and for that reason the suit was not removable. But we do not pass on this point, because we are of opinion that the application for removal came too late. The act of March 3, 1875, under which this removal was asked, requires of the party seeking it that 'he or they make and file a petition in such suit, in such state court, before or at the term at which such cause could be first tried, and before the trial thereof for the removal of such suit into the circuit court.'

Under the act of 1789, § 12, (1 St. 79,) the right of removal could only be exercised by a defendant in a court of a state of which he was not a citizen, and he was required to make his application for the removal at the time of entering his appearance. The reasons for this were obviously that the plaintiff, who had selected the state court as his forum, should not be permitted to change it after calling his adversary there, and that the defendant, who had a right of removal, and failed to exercise it at the earliest period possible, should be presumed to have acquiesced in the forum chosen by the plaintiff. The law remained in this condition until an act of congress of July 27, 1866, authorized an alien or citizen of a state other than that in which the suit is brought, to remove the cause, though there be other defendants who are citizens of that state, when there can be a final determination of the controversy, so far as he is concerned, without the presence of the other defendants. In this class of cases the petition for removal could be filed at any time before the trial or final hearing of the cause. 14 St. 306. An act to amend this act, approved March 2, 1867, authorized either plaintiff or defendant in a state court, when they were citizens of different states, to remove the suit on account of prejudice or local influence into the circuit court of the United States, if he filed in the state court an affidavit of the existence of this cause of removal, at any time before the final hearing or trial of the suit. These latter acts do not speak of terms of the courts, or of the appearance of the moving party; but, using the words 'hearing' and 'trial' in their appropriate sense of a hearing in chancery and a trial at law, permit the removal at any time before the hearing or the trial is begun. Removal Cases, 100 U.S. 457.

The act of 1875, which governs the case before us, while superseding by its general provisions nearly all the removal statutes, prescribes a rule which is neither so stringent as the act of 1789, nor so lax as those of 1866 and 1867. While the party who has a case for removal is not put to his election to exercise or abandon the right to remove at the moment of entering his appearance, he is not permitted unreasonably to delay this election during all the period incident to the preparation of the case, until both parties find themselves in condition to go to trial at law, or are ready for a hearing in chancery. The later act clearly requires more diligence in making the election than this. If it had intended to enact that the removing party had until the case was ready for trial on both sides, or was fully at issue, or was noticed or set down for trial, it would have been easy to indicate this in words. The language, however, which was adopted means a very different thing. It is not the time when the case stands ready for trial on the calendar, but the term at which it could be first tried. Not the term at which the party can no longer delay a trial, but the term at which it could be first tried. These words have no meaning if they do not mean the first term after the commencement of the suit at which a trial was in order was a thing which the urging or pursuing party had a right to look for, and to put his adversary to a showing if he desired a continuance. In the language of this court, 'the election must be made at the first term at which the cause is in law triable.' Babbitt v. Clark, 103 U.S. 606. In other words, at that term in which, according to the rules of procedure of the court, whether they be statutory or rules of the court's adoption, the cause would stand for trial if the parties had taken the usual steps as to pleading and other preparations. This term at which the case could be first tried is to be ascertained by these rules, and not by the manner in which the parties have complied with them, or have been excused for non-compliance by the court, or by stipulation among themselves.

On this point the language of MCCRARY, C. J., in Murray v. Holden, 1 McCrary, 341, S.C.. 2 Fed. Rep. 740, is very pertinent. 'One of the objects,' he says, 'of the act of 1875 was to prevent the abuses which had been practiced under the acts of 1866 and 1867, which allowed a removal at any time before the final hearing. It was evidently the purpose of congress to fix an earlier and definite time, which would not permit the litigant to experiment in the state court until satisfied he would fail there, and then change his forum. In all the states there is, by law or rule, a trial term; i.e., a term at which a cause may for the first time be called for a trial. In practice but few contested cases are tried at the first trial term, and it often happens that controversies arise upon questions of pleading, so that no issues of fact are joined at that term. It is, nevertheless, the term at which, within the meaning of the law, such cases could be first tried, and therefore is the term at or before which the petition for removal must be filed.' The case of Babbitt v. Clark, supra, in this court, is also in point. The court there says: 'The act of congress does not provide for the removal of a cause at the first term at which a trial can be had on the issues as finally settled by leave of court or otherwise, but at the first term at which the cause, as a cause, could be tried.' Under this construction of the statute which is, undoubtedly, sound, there is no difficulty in deciding this case. While it is a chancery cause, the same principles must govern it, though it may require a little more care in determining when it could be first tried.

It appears by a stipulation in the case that the first Monday in every month is the beginning of a new term of the superior court of Cook county, from which this suit was removed. It also appears that the suit was brought to the September term, 1883, of that court, and the defendants, who were the removing party, and are also appellants here, obtained an extension of time, by order of the court, for 30 days from September 20th, to answer the original bill, and like time was granted to the defendants in a cross-bill to answer that. This time was extended afterwards in both cases, by agreement of counsel, until January 11, 1884, and on that day they were filed. The application for this removal was made in the February term, 1884. It thus appears that, including the appearance term at which the case might have been tried if appellant had answered according to rule, instead of obtaining an extension of 30 days by order of the court, there were five terms of the court at which the motion could have been made for removal in which no such motion was made. We see no reason why this case was not triable at any of those terms according to the due course of proceedings in such cases. The only reason why it was not so tried, was the time beyond that of the usual course prescribed by rule, which was obtained by order of the court or by agreement of the parties. The case was certainly triable at the January term, after the answers were all in, for it could have been then tried on bill and answer, or the plaintiff have been forced to file replication, which could have been done instanter. The decree of the circuit court remanding the case to the state court is affirmed.


text: Talk:Pullman Palace Car Company v. Speck/Opinion of the Court


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Page:Dictionary of National Biography volume 06.djvu/200

 Bradstreet Hall, Raydon, but removing thence, he resided at various places, and at length died at Southampton on 13 May 1836.

He was the author of 'The Sabine Farm, a poem: into which is interwoven a series of translations, chiefly descriptive of the Villa and Life of Horace, occasioned by an excursion from Rome to Licenza,' London, 1810, 8vo. There are seven engraved plates in the work, and an appendix contains 'Miscellaneous Odes from Horace.'

 BRADSTREET, SAMUEL (1735?–1791), Irish judge, the representative of a family who had settled in Ireland in the time of Cromwell, was born about 1735, being the younger son of Sir Simon Bradstreet, a barrister, who was created a baronet of Ireland on 14 July 1759. Samuel Bradstreet was called to the Irish bar in Hilary term, 1758. He was appointed in 1766 to the recordership of Dublin. In June 1776 Bradstreet who, at the death of Sir Simon, his elder brother, in 1774, had succeeded to the title as third baronet was elected representative of the city of Dublin in the Irish House of Commons. He was re-elected in October 1783, and was distinguished as a member of the 'patriotic party,' from which, however, according to Sir Jonah Barrington, he was one of the 'partial desertions.' 'Mr. Yelverton, the great champion of liberty, had been made chief baron, and silenced; Mr. Bradstreet [i.e. Sir Samuel Bradstreet] became a judge [in January 1784], and mute; Mr. Denis Daly had accepted the office of paymaster, and had renegaded' (Historic Anecdotes, ii. 166). Bradstreet presided in 1788 at Maryborough, Queen's County, where he summed up for the conviction of Captain (afterwards General) Gillespie, for the murder of William Barrington, younger brother of Sir Jonah Barrington, whom he held to have been unfairly slain by Captain Gillespie in a duel. In 1788 Bradstreet was appointed a commissioner of the great seal, in association with the Archbishop of Dublin and Sir Hugh Carleton, chief justice of the court of common pleas. Bradstreet died at his seat at Booterstown, near Dublin, on 2 May 1791, and was succeeded in the baronetcy by Simon, the eldest of his four sons by his wife Eliza, whom he married in 1771, and who died in 1802, only daughter and heiress of James Tully, M.D., of Dublin.

 BRADWARDINE, THOMAS (1290?–1349), archbishop of Canterbury, is commonly called. His surname is variously spelt Bragwardin (Gerson), Brandnardinus (Gesner), Bredwardyn (Birchington), and Bradwardyn (William de Dene). In public documents he is usually designated as Thomas de Bradwardina or de Bredewardina. His family may have originally come from Bradwardine near Hereford, but he himself says that he was born in Chichester, and implies that his father and grandfather were also natives of that city. Birchington indeed (, Anglia Sacra, i. 42) says that he was born at Hertfield (Hartfield) in the diocese of Chichester, and William de Dene (Ang. Sac. i. 376) gives Condenna (probably Cowden) in the diocese of Rochester as his birthplace, but neither of these writers supports his statement by any evidence.

At Chichester Thomas may have become acquainted with the celebrated Richard of Bury, afterwards bishop of Durham, who held a prebendal stall in Chichester Cathedral early in the fourteenth century, and from that enthusiast in study and diligent collector of books he may have first imbibed a taste for learning. Nothing, however, is known respecting his education before he went to Oxford, nor has the exact date of his going thither been ascertained. All we know for certain is that he was entered at the college, then recently founded by Walter de Merton, and in 1325 his name appears as one of the proctors of the university. In this capacity he had to take part in a dispute between the university and the archdeacon of Oxford. The archdeaconry was held in commendam by Galhardus de Morá, cardinal of St. Lucia; the duties of the office were discharged by deputy, and the emoluments were farmed by men whose object was to make as much gain for themselves as they could. They claimed spiritual jurisdiction over the university for the archdeacon. The chancellor and proctors resisted the claim, maintaining that the discipline of the university pertained to them. The cardinal archdeacon having complained to the pope, the chancellor, proctors, and certain masters of arts were summoned to Avignon to answer for their conduct, but they