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Indianapolis and St. Louis Railroad Company v. Horst/Opinion of the Court

The defendant in error was injured while travelling on the road of the plaintiff in error, and brought this suit to recover damages. To set in their proper light the propositions of law relied upon by the plaintiff in error for the reversal of the judgment, a brief statement of the facts of the case is necessary.

The plaintiff was a farmer, residing in Pennsylvania. He had been engaged in the cattle trade since 1862, and had shipped annually, over the Western railroads to the Eastern markets, about a thousand head of cattle. The cause of action occurred on the 4th of August, 1870. He had shipped on the defendant's road, the day before, five car-loads of cattle, to be conveyed to Pittsburg, and was on the train at the time of the injury. He arrived at Mattoon, in Illinois, about midnight. He and two other drovers were asleep in a caboose attached to the hinder end of the train. They were aroused by the conductor, who commanded them to get out of the caboose, and to get on top of the train. He said he should detach the caboose; and that, at some distance further up the road, he would attach another. The train was then at rest. The plaintiff went forward with his prod to look after his cattle, and returned on the roof of the cars to where his fellow-drovers were standing awaiting the movement of the train. He stood there, with his carpet-sack in one hand and the prod in the other. He used the latter to support himself. The train ran a half or three quarters of a mile to pass on to a switch, and take on the other caboose. A brakeman on the hindmost car had a lantern in his hand. The light so dazzled or blinded the plaintiff, that he thought he was on the same car with the brakeman, though he was in fact near the end of the car next before it. The train, in backing on the switch, stopped before it reached the caboose which was to be attached to it. It was thereupon suddenly drawn forward, 'to take up the slack,' and then suddenly backed, producing a quick and powerful concussion, which precipitated the plaintiff between the car on which he was standing and the hindmost car. 'The shock of the concussion,' one of the witnesses says, 'was about as hard a shock as I ever felt, not to knock a train off the track. It seemed as if it was tearing every thing to pieces.' The plaintiff fell on the coupling, and received the injury complained of. No warning was given that these sudden and violent movements were likely to occur, and none was given that any precautions were necessary. No light was furnished to the plaintiff and his fellow-passengers, and no directions were given for their guidance and safety. All the evidence in the case is set out at length in the bill of exceptions. It was given by the plaintiff. The defendant gave none. The entire charge of the court, and the instructions asked for on both sides, are also fully set out. The defendant asked for twenty instructions. The court refused to give any of them. The plaintiff asked for six, which were all given. To both the refusal and the giving the defendant excepted. The plaintiff's prayers were excepted to, severally.

When instructions are asked in the aggregate, as were those of the defendant, and there is any thing exceptionable in either of them, the whole may be properly rejected by the court. Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 id. 338; Johnson v. Jones, 1 Black, 209.

There were several things of this character in those in question. It is sufficient to refer to one of them. The court was asked to charge that the defendant was bound to exercise only ordinary care and diligence. This point will be considered, presently, in another connection.

It is the settled law in this court, that, if the charge given by the court below covers the entire case, and submits it properly to the jury, such court may refuse to instruct further. It may use its own language, and present the case in its own way. If the results mentioned are reached, the mode and manner are immaterial. The court has then done all that it is bound to do, and may thus leave the case to the consideration of the jury. Neither party has the right to ask any thing more. Labor v. Cooper, 7 Wall. 565. We think the charge in this case fulfils the requisites we have defined. The errors of omission and commission alleged are not numerous. We might, perhaps, properly content ourselves in this connection with vindicating the charge as given. We shall, however, consider all the several assignments of error which we deem material, both with respect to the charge and otherwise, as we find them set forth in the printed brief of the counsel for the company. The same points were fully and ably argued by the same gentlemen orally at the bar.

'1. The court erred in instructing the jury that a person taking a cattle-train is entitled to demand the highest possible degree of care and diligence, regardless of the kind of train he takes.'

Such is the rule of care and diligence laid down by this court in three adjudications where the action was against a carrier of persons. The first was the Philadelphia & Reading R. R. Co. v. Derby, 14 How. 486. The plaintiff was travelling gratuitously on a passenger train. It was said: 'Where carriers undertake to convey passengers by the powerful and dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence.' 'Any negligence in such case may well deserve the epithet of gross.' The next was The Steamboat New World v. King, 16 How. 469. That was the case of a free passenger carried on a steamer, and injured by the explosion of a boiler. Referring to the rule laid down in the prior case, the court said: 'We desire to reaffirm the doctrine, not only as resting on public policy, but on sound principles of law.' The last case was the New York Central R. R. Co. v. Lock, 17 Wall. 357. That was a case, like this, of a passenger accompanying his cattle on a freight-train. It was there said: 'The highest degree of carefulness and diligence is expressly exacted.' This is conclusive as authority upon the subject. But, upon principle, why should not the law be so in this case? Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace-car. The same formidable power gives the traction in both cases. The rule is uniformly applied to passenger-trains. The same considerations apply to freight-trains: the same dangers are common to both. Such care and diligence are as effectual and as important upon the latter as upon the former, and not more difficult to exercise. There is no reason, in the nature of things, why the passenger should not be as safe upon one as the other. With proper vigilance on the part of the carrier, he is so. The passenger has no authority upon either, except as to the personal care of himself. The conductor is the animating and controlling spirit of the mechanism employed. The public have no choice but to use it. The standard of duty should be according to the consequences that may ensue from carelessness. The rule of law has its foundation deep in public policy. It is approved by experience, and sanctioned by the plainest principles of reason and justice. It is of great importance that courts of justice should not relax it. The terms in question do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from any possible peril, nor such as would drive the carrier from his business. It does not, for instance, require, with respect to either passenger or freight trains, steel rails and iron or granite cross-ties, because such ties are less liable to decay, and hence safer than those of wood; nor upon freight-trains air-brakes, bell-pulls, and a brakesman upon every car; but it does emphatically require every thing necessary to the security of the passenger upon either, and reasonably consistent with the business of the carrier, and the means of conveyance employed. The language used cannot mislead. It well expresses the rigorous requirement of the law, and ought not to be departed from. The rule is beneficial to both parties. It tends to give protection to the traveller, and warns the carrier against the consequences of delinquency. A lower degree of vigilance than that required would have averted the catastrophe from which this litigation has arisen. Dunn v. Grand Trunk R. R. Co., 58 Me. 157; Tuller v. Talbot, 23 Ill. 357; Pittsburg & C. R. R. Co. v. Thompson, 56 Ill. 138.

'2. The court erred in refusing to instruct the jury, that their investigation as to the negligence of the defendant should be confined to the charges alleged in the declaration.'

The charge in both counts of the declaration was 'carelessness and negligence and improper conduct' of the defendant's servants in connection with the injury. The plaintiff was bound to state his case; but he was not bound to state the evidence by which he intended to prove it. We have looked through the proofs as set out in the bill of exceptions; and have found nothing in this connection that did not support, with more or less cogency, the plaintiff's averment.

'3. The court erred in permitting the plaintiff to prove the manner of changing cabooses at Mattoon, after the injury, to show the wrongfulness of defendant's conduct at the time of the accident.'

Detaching the caboose in the night, and requiring the plaintiff to ride so far upon top of the freight-cars before reaching the caboose that was to be attached, involved a serious peril, and was the cause of the casualty complained of. The evidence was competent, as tending to prove, if such proof were necessary, that the change could as well have been made where the second caboose was, and that making it when and where it was made was a matter of choice and in no wise of necessity. The point is covered by the ''Toledo, &c. R. R. Co. v. Owen'', 43 Ind. 405. We think the decision there was correct.

'4. Although the plaintiff's evidence showed that the accident resulted from the plaintiff's negligence, the court charged that 'the burden of proving contributory negligence rests on the defendant; and it will not avail the defendant, unless it has been established by a preponderance of evidence."

We have said, that riding on the top of a freight-car in the night involved peril. When commanded to go there, the plaintiff had no choice but to obey, or to leave his cattle to go forward without any one to accompany and take care of them. The command was wrong. To give him no warning was an aggravation of the wrong. He, however, rode safely to the switch, standing in one place. He had a right to assume that the posture and place would continue to be safe. He had no foreknowledge of the coming shock. The conductor knew it, but gave him no word of caution or notice. He was unaware of danger until the catastrophe was upon him. The behavior of the conductor was inexcusable. If there was fault on the part of the plaintiff, in what did it consist? We find nothing in the record which affords any warrant for such an imputation. As the case went to the jury, the opposite was established. There was no proof to the contrary. Nevertheless, the court, out of abundant caution, charged the jury upon the hypothesis that there might be some testimony tending possibly to support the adverse view. The instruction contained two elements:--

(1.) That the burden of proof rested on the defendant.

This was correct. Railroad Company v. Gladden, 15 Wall. 401.

(2.) That 'it,' meaning contributory negligence, could 'not avail the defendant, unless established by a preponderance of evidence.'

This, also, was correct. The court did not say that if such negligence were established by the plaintiff's evidence, the defendant could have no benefit from it, nor that the fact could only be made effectual by a preponderance of evidence, coming exclusively from the party on whom rested the burden of proof. It is not improbable that the charge was so given by the court from an apprehension that the jury might without it be misled to believe that it was incumbent on the plaintiff to show affirmatively the absence of such negligence on his part, and that if there was no proof, or insufficient proof, on the subject, there was a fatal defect in his case. It was, therefore, eminently proper to say upon whom the burden of proof rested; and this was done without in any wise neutralizing the effect of the testimony the plaintiff had given, if there were any, bearing on the point adversely to him. We think the instruction was properly expressed. If there was any ambiguity unfavorable to the defendant, it was the duty of his counsel to bring it to the attention of the court, and ask its correction. Lock v. United States, 2 Cliff. 574. This was not done, perhaps because it was deemed unnecessary. If the defendant had, in the first instance, required any charge upon the subject, it should have been refused. It is not the duty of the court to instruct where the instruction demanded assumes a theory of fact which is unsupported or contradicted by the evidence. On the contrary, it is error to do so; and the jury should be distinctly told that the requisite evidence is wanting. Such instructions cannot aid the jury, and may confuse and mislead them. Michigan Bank v. Eldred, 9 Wall. 544; Ward v. United States, 14 id. 28.

'5. The court refused the motion of the defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict.'

These questions of fact were submitted by the counsel for the defendant. Upon looking into them, we find they were nine in number. All of them related to the question of negligence on the part of the plaintiff. It is insisted that they were within the act of Congress of June 1, 1872 (17 Stat. 197, sect. 5), and that hence the court below erred in declining to require the jury to find in answer to them, in addition to the general verdict. We had occasion to consider this statute in Nudd v. Burrows, 91 U.S. 441, and see no reason to depart from the views there expressed. We said the section in question had its origin in the code enactments of many of the States, and was intended to relieve the legal profession from the burden of studying and of practising under the two distinct and different systems of the law of procedure in the same locality, one obtaining in the courts of the United States, the other in the courts of the State; but that it was not intended to fetter the judge in the personal discharge of his accustomed duties, or to trench upon the common-law powers with which in that respect he is clothed. Whether Congress could do the latter was left open to doubt. It was not then, and it is not now, necessary to decide that question. The statute expressly recognizes the distinction between proceedings in equity, in admiralty, and at common law. The separate character of the two former is recognized by the Constitution, and it protects them. The latter Congress can change and regulate as it may see fit, within the limits of its constitutional authority. Here, the question is one of legislative intent. The intention of the law-maker constitutes the law: a thing may be within the letter of a statute, and not within its meaning; and within its meaning, though not within its terms. 9 Bouv. Bac. Ab. title Stat., sect. 5, pp. 246, 247; Burgett v. Burgett, 1 Ohio, 221; Stater v. Cave, 3 Ohio St. 85; United States v. Babbit, 1 Black, 61.

Where a State law, in force when the act was passed, has abolished the different forms of action, and the forms of pleading appropriate to them, and has substituted a simple petition or complaint setting forth the facts, and prescribed the subsequent proceedings of pleading or practice to raise the issues of law or fact in the case, such law is undoubtedly obligatory upon the courts of the United States in that locality. There may be other things, not necessary now to be specified, with respect to which it is also binding. But where it prescribes the manner in which the judge shall discharge his duty in charging the jury, or the papers which he shall permit to go to them in their retirement, as in Nudd v. Burrows, or that he shall require the jury to answer special interrogatories in addition to their general verdict, as in this case, we hold that such provisions are not within the intent and meaning of the act of Congress, and have no application to the courts of the United States. These are all matters relating merely to the mode of submitting the case to the jury. The conformity is required to be 'as near as may be'-not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose: it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals.

While the act of Congress is to a large extent mandatory, it is also to some extent only directory and advisory. The constitution of Indiana, art. 7, sect. 5, requires that 'the Supreme Court shall, upon the decision of every case, give a statement of each question arising in the record of such case, and the decision of the court thereon.' This was held to be directory, and not mandatory. Willets v. Ridgeway, 9 Ind. 367.

The Criminal Code of Practice of Arkansas provided that the court should admonish the jury that it was their duty not to allow any one to speak to them upon any subject connected with the trial, nor to converse among themselves upon any such subject, until the cause was finally submitted to them. It was held this provision was only directory and cautionary, and that the omission to comply with it was not error, and did not affect the validity of the verdict. Thompson v. The State, 26 Ark. 326. See also Wood v. Terry, 4 Lans. 86; State v. Carney, 20 Iowa, 82; Bowers v. Sonoma, 32 Cal. 66; Hill v. Boyland, 40 Miss. 618.

We think the learned judge below decided correctly in refusing to submit the interrogatories to the jury.

'6. The motion for a new trial should have been granted in the court below.'

In the courts of the United States, such motions are addressed to their discretion. The decision, whatever it may be, cannot be reviewed here. This is a rule of law established by this court, and not a mere matter of proceeding or practice in the Circuit and District Courts. Henderson v. Moore, 5 Cranch, 11; Boswell v. De la Lanza, 20 How. 29; Schuchardt v. Allen, 1 Wall. 371. It is, therefore, not within the act of Congress of June 1, 1872, and cannot be affected by any State law upon the subject.

Judgment affirmed.


text: Talk:Indianapolis and St. Louis Railroad Company v. Horst/Opinion of the Court

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text:
The Atlas

CROSS-APPEALS from the Circuit Court of the United States for the Eastern District of New York.

This is a libel against the steamboat 'Atlas,' by the Phoenix Insurance Company, for damages resulting from a collision between the 'Atlas' and the steam-tug 'Kate,' whereby a canal-boat, in tow of the latter, was sunk, and her cargo, of which the company was the insurer, was lost and destroyed.

The District Court found that the collision was caused by the mutual fault of the 'Atlas' and 'Kate,' and decreed that the libellant recover against the 'Atlas' one-half of the damages sustained.

Both parties appealed; and, the Circuit Court having affirmed the decree, they appealed here, and filed a written stipulation as follows:--

'1. The appeal taken by the claimants to this court from the decree of the United States Circuit Court for the Southern District of New York is waived, so as to bring up before the court, on the argument of this cause on the cross-appeals, only the question of law as to whether libellants are entitled to recover the whole amount of the damages, instead of one-half.

'2. The parties agree that the collision mentioned in the libel and proceedings in this cause occurred by the mutual fault of the steamboats 'Atlas' and 'Kate.'

'3. The libellants waive and abandon the assignment of error, and the claim that the decree of the Circuit Court should be reversed, on the ground that the 'Atlas' only was in fault; and rely only on the assignment of error, that the decree should have been for the whole amount of the damages sustained by them, instead of for only a moiety thereof; and the only question to be submitted to the court is the question of law, whether the 'Atlas' is liable for the whole amount of libellants' damages.'

Mr. W. R. Beebe for the claimants.

The libellant having failed to make the 'Kate' a party, cannot hold the 'Atlas' responsible for more than one-half of the damages.

The libellant, however, stands in no better position than the 'Kate' herself. It is a rem liability, and not a personal claim or right.

Had it been decided that the canal-boat which held the cargo was in fault, and contributed to the collision, then the decisions are numerous both in the admiralty courts of England and in this country as to the limit of the liability of the 'Atlas.'

The reason is obvious; the owners of the cargo choose their boat, and repose confidence in the officers and crew that the enterprise will be properly conducted. This is especially true when the latter must rely upon other motive power for locomotion.

This reliance upon other motive power falls as much within the scope of the employment of the canal-boat, by the owner of the cargo, as would her navigation by sails, if she had them, or steam, if that was her propelling power. To hold otherwise would seem to involve the question within the character of his employment, and the necessities of his vessel, of the master of the canal-boat to employ motive power.

This employment would make the motive power as much the agent of the shipper as the canal-boat and its crew would be.

It is hard to see where the distinction exists, if there is any.

If these positions are correct, then, clearly, the cargo holds no better position to the collision than does the 'Kate.' Hay v. La Neve, 2 Shaw's Appeal Cases, 395; The Bonita, The Alfred, The Jose Maria, all cited in The Milan, 1 Lush. 388; The Hasbrouck, 5 Ben. 244.

The power and jurisdiction of the admiralty are peculiar, and a court of common law does not possess them.

At common law, contributory negligence defeats the right of recovery. In admiralty it only calls upon the court to apportion the damages between the faulty vessels.

This necessity involves the power to declare what vessels are in fault, where the fault lies, and to apportion the damages.

This duty is just as incumbent upon the court when there is contributory negligence as it is to decide the case at all.

It follows, as an equal necessity, that whether all the vessels are before the court or not, the power and duty of the court are equally imperative to declare where the fault lies, and apportion the damages.

From these positions it follows that each vessel, whether before the court or not, is equally bound to bear its share or portion of damages. The libellant cannot shield himself from the consequences of making the 'Atlas' the sole party, by claiming that any vessel before the court may, under certain circumstances, be liable for more than that share or portion.

The power of apportionment is peculiar. It is sui generis in the admiralty courts, and has no recognition in the courts of common law. We submit that its fair intent and the principles involved in it make a several and not joint liability; were not this so, the whole doctrine must necessarily fall to the ground.

The power to apportion necessarily involves that of determining the extent of the liability of each. The court is not bound to apportion equally. It has the power to determine not only who are in fault, but the extent of such fault, and the amount which each must contribute.

The acts of Congress have limited the liability of the owner to the value of his vessel. When the court has fixed the extent of his contributory guilt, it would be a harsh rule, that, because his vessel happens to be of greater value than that of his co-trespasser, he must also pay for the wrongs of the latter. This would virtually abolish the law of apportionment, and bring into full force the common-law doctrine.

The establishment of the law, that the court can only deal with the vessel actually seized, and hold it solely liable for the whole damages, upon the idea of all being joint trespassers, would leave the victim entirely in the hands of the libellant; and, if there were really ten offending vessels, it might perhaps be that one least in fault is chosen because it happens to be the most valuable, or is proceeded against from even more selfish motives.

This would defeat the whole object and purpose of the law of apportionment.

Mr. William Allen Butler for the libellants.

The court below erred in limiting the recovery of libellants to one-half the value of the cargo destroyed by the collision. Under the circumstances, they were entitled to recover their entire loss from either of the two vessels which were adjudged to be mutually in fault in causing it.

The owners of the cargo of the canal-boat in tow of the 'Kate' were innocent parties, and in no way responsible for the collision. They had no control over the movements of either of the steam-tugs, nor were the master and crew of either of those vessels their agents or servants. The cargo stood in the same relation to the two steam-tugs, by whose concurring negligence it was destroyed, as that of a passenger lawfully on the canal-boat or on either of the steam-tugs at the time of the disaster, who, without fault of his own, sustained personal injuries by the collision. The Milan, 1 Lush. 388; The Alabama and The Game-cock, 92 U.S. 695.

Upon the facts of this case, the owners of the cargo could at common law have proceeded against the owners of either offending vessel, and recovered the whole amount of their damages. An innocent party, injured by the co-operative negligence of several persons, can sue them jointly or severally, and recover from either compensation for the injury done by all. Guille v. Swan, 19 Johns. 381; Chapman v. New Haven R. R. Co., 19 N. Y. 341; Webster v. Hudson River R. R. Co., 38 id. 260; ''Arctic Ins. Co. v. Austin'', 10 N. Y. Sup. Ct. (2 Hun) 195; Colegrove v. N. Y. & N. H. R. R. Co., & Harlem R. R. Co., 20 N. Y. 292.

The same rule prevails in admiralty. The New Philadelphia, 1 Black, 62.

The common law creates a joint and several liability, not because the injury is the result of a joint act implying a common design or intent to produce the injury, but because by a single and forcible act, which would not have happened except by the concurring negligence of two parties, an injury has been done to an innocent party.

That rule must also obtain in the courts of admiralty. This is matter of right, in respect to which the rule of admiralty apportioning damages equally between the parties mutually at fault does not apply. That rule is one of limitation and distribution of damage among and between wrong-doers, as respects themselves. It is one, and hardly one, of equity, because it imposes an equal contribution on the ships in fault, without regard to their relative value or to the degree of blame imputable to either. It is properly styled by Chancellor Kent, following Cleirac, a rusticum judicium, by which an arbitrary rule is applied as the best method of disposing of cases in which the precise measure of fault is either inscrutable or not ascertainable with accuracy. 3 Kent's Com., p. 313 (11th ed.). See Hay v. Le Neve, 2 Shaw's Scotch Appeals, 395.

It certainly has no proper application to the case of an innocent sufferer. Justice requires that his wrong shall be redressed without reference to an adjustment of the relative degrees of blame or responsibility of the wrong-doers as between themselves, or to their ultimate liability to each other for contribution.

The Milan, 1 Lush. 388,-the only reported case in which it has been attempted to impose the admiralty rule of equal apportionment, as between wrong-doers, upon an innocent party, by limiting his recovery in a suit against one of two offending vessels to a moiety of the damage done by both,-has been disapproved by this court. The Alabama and The Game-cock, supra; The D. S. Gregory, 9 Wall. 513.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Atlas


text: Talk:The Atlas

title: Talk:The Atlas


text:
The Atlas/Opinion of the Court

Owners of ships and vessels are not liable, under existing laws, for any loss, damage, or injury by collision, if occasioned without their privity or knowledge, beyond the amount of their interest in such ship or vessel and her freight pending at the time the collision occurred.

Subject to that provision in the act of Congress, the damages which the owner of the injured vessel is entitled to recover are estimated in the same manner as in suits for injuries to other personal property, and the claim for compensation may, in certain cases, extend to the loss of freight, necessary expenses in making repairs, and unavoidable detention.

Restitutio in integrum is the leading maxim in such cases; and where repairs are practicable, the rule followed by the admiralty courts in such a case is, that the damages assessed against the respondent shall be sufficient to restore the injured vessel to the condition in which she was at the time the injury was inflicted. The Clyde, Swabey, 24; The Gazelle, 2 W. Rob. 280; The Baltimore, 8 Wall. 385; Williams & Bruce, Prac. 77; 1 Pars. on Ship. 538; The Pactolus, Swabey, 174.

Sufficient appears in the record to show that the libellants became the insurers of the cargo of the canal-boat named in the libel, consisting of linseed, in the sum of $14,500, for a voyage from the port of New York to the port of New Brunswick, in the State of New Jersey; that the canal-boat, with her cargo on board, was taken in tow at the port of departure by the steam-tug called the 'Kate;' that the steam-tug, with her tow, including the canal-boat and two other vessels, proceeded in safety to New Brighton, where the whole flotilla remained until the next morning, when they started for the port of destination, the steam-tug heading north-west by north, and taking her course across the kills directly for Port Johnson, on the Jersey shore; that the steam-tug with the canal-boat and the two other vessels in tow kept that course until she was within one hundred and fifty yards of the shore, when the master, being then in the pilot-house, heard the whistle of a steamboat about one-tenth of a mile distant; that it was a single blast, being the signal that the respective boats as they approached should pass to port; that the master of the steam-tug having the canal-boat in tow answered the signal by blowing his whistle twice, which is the proper signal that the boats should pass to starboard, it being unsafe for him, owing to the state of the tide and the conformation of the adjacent shore, to attempt to pass the approaching vessel on the port side; that the signal given was the proper one; and the charge is, that the master of the steam-tug immediately starboarded his helm, and that the approaching vessel, which proved to be the steam-tug the 'Atlas,' within a minute ran into the steam-tug having the canal-boat in tow, with great force and violence, staving her in from her plank-shear to the third plank below her water line, which caused the steam-tug and canal-boat she had in tow to sink, whereby the cargo of the canal-boat became a total loss; and the libellants also charge, that the loss was wholly occasioned through the fault, negligence, and want of skill of those in charge of the approaching steam-tug. The Friends, 4 Moore, P. C. C. 319.

Process was served, and the claimants appeared and filed an answer, setting up the several defences alleged in the record. Testimony was taken on both sides, and, the parties having been fully heard, the District Court entered an interlocutory decree that the damages claimed by the libellant were caused by the mutual fault of the steam-tug 'Kate' and the steamboat 'Atlas,' and that the libellants do recover against the steamboat 'Atlas' one-half of the damages by them sustained by reason of the collision, and that the cause be referred to a commissioner to ascertain the amount.

Pursuant to the decretal order, the commissioner reported that the whole amount of the damages to the date of the report was $13,617.02, and that the libellants were entitled to recover one-half of that sum; to wit, $6,808.51. Exceptions were filed by the libellants to that report, upon the ground that they are entitled to the entire amount of the damages sustained; but the court overruled the exception, confirmed the report, and entered a final decree in conformity with the report. Both parties appealed to the Circuit Court, where the parties having been again fully heard, the Circuit Court entered a final decree affirming the decree of the District Court, and both parties appealed to this court.

Since the appeal was entered here, the parties have been fully heard, and they have filed in the cause a written stipulation, to the effect following: 1. That the claimants insist only that the decree of the Circuit Court should be affirmed, the parties agreeing that the collision occurred through the mutual fault of the steamboats 'Atlas' and 'Kate.' 2. That the libellants admit that both the steamboats were in fault, but insist that they are entitled to recover for their full loss, and that the decree, being for a moiety only, should be reversed on that account, and that a decree should be entered for the entire damages that the owners of the cargo of the canal-boat sustained by the collision.

Other questions involved in the record being waived, the court will confine its attention to the single inquiry, whether the ruling of the court below in overruling the exception of the libellants to the report of the commissioner is or is not correct.

Satisfaction to the libellant for the injury sustained is the true rule of damages in a cause of collision, by which is meant that the measure of compensation shall be equal to the amount of injury received, and that the same shall be calculated for the actual loss occasioned by the collision, upon the principle that the sufferer is entitled to complete indemnification for his loss, without any deduction for new materials used in making repairs, as is prescribed in the law of marine insurance. Complete recompense for the injury is required; nor is the guilty party in such a case entitled to deduct from the amount of the damages any sum which the libellant has received from an underwriter on account of the same injury, the rule being, that a wrong-doer in such a case cannot claim the benefit of the contract of insurance if effected by the person whose property he has injured. Maude & P. on Ship. (3d ed.) 465; Flanders on Ins. 591.

Instead of that, the law is well settled, that the reception of the amount of the loss from the insurers is no bar to an action subsequently commenced against the wrong-doer to recover compensation for the injury occasioned by the collision. Mason v. Sainsbury, 3 Doug. 61.

Authorities to that effect are numerous; and it was expressly decided by the judges, in Yates v. Whyte et al., 4 Bing. N. C. 272, that the defendants in such a case were not entitled to deduct from the amount of damages to be paid by them a sum of money paid to the plaintiff by insurers in respect of such damage.

None can recover compensation twice in respect of the same injury; but what the plaintiff recovers under his policy of insurance is not compensation for damages, but a payment under a contract independent of the claim against the wrong-doer; and the better opinion is, that the principle which excludes double compensation does not strictly apply to obligations not in the same right. May on Ins. 555.

Compensation by the wrong-doer after payment by the insurers is not double compensation, for the plain reason that insurance is an indemnity; and it is clear that the wrong-doers are first liable, and that the insurers, if they pay first, are entitled to be subrogated to the rights of the insured against the insurers.

Support to that proposition is found everywhere; and some of the authorities go further, and decide, that the suit against the wrong-doer for the benefit of the insurer must be prosecuted in the name of the injured party. Randall v. Cockran, 1 Ves. Sen. 90; Godsall v. Boldero, 9 East, 81; Irwing v. Richardson, 1 B. & Adol. 196; Case v. Davidson, 5 Maule & Selw. 81; Clark v. Blything, 2 Barn. & Cressw. 256.

Suppose that is so, still it cannot affect the question in this case, which is, whether the decree should be for a moiety only of the damages occasioned by the collision, or for the entire amount. Waiving the question of parties, it is clear that the respondents are liable for one or the other of those amounts. 1 Park on Ins. (8th ed.) 330; Insurance Company v. Sainsbury, 3 Doug. 245; Yates v. Whyte et al., supra; 2 Marsh on Ins. (2d ed.) 794; 2 Park on Ins. (8th ed.) 969; 2 Phillips on Ins. (5th ed.), sect. 2001.

Beyond all doubt, the owners of a ship or vessel injured by collision may proceed to recover compensation either against the owners, or against the master personally, or against the ship herself, at their election. The Volant, 1 W. Rob. 387; Maude & P. on Ship. (3d ed.) 466.

Argument to support that proposition is unnecessary; but it is equally well settled that the cargo which is on board the colliding vessel at the time the collision occurs is not liable for the damage done by the ship in which it is carried. The Victor, 1 Lush. Adm. 76.

Damage is sometimes said to be done by the ship, but that is a mere form of expression; the truth being, that it is either done by the owner, or by the master and crew employed by the owner, who is responsible for their conduct; because, being employed by the owner, they are his agents, but they are not the agents or servants of the owner of the cargo, and for that reason the cargo is not liable for the consequences of a collision.

Matters of fact need not be discussed in this case, as it is admitted by the parties that the collision occurred through the mutual fault of the steamboar 'Atlas' and the steam-tug 'Kate' which had the canal-boat in tow with her cargo on board. Both courts below gave the libellants a moiety of the damages ascertained by the commissioner, and the claimants insist that the decree of the Circuit Court is correct. On the other hand, the libellants insist that they are entitled to recover the entire damages occasioned by the collision, and that the decree of the Circuit Court should be reversed.

Disasters of the kind occur from different causes and under very different circumstances, and the rules of admiralty law applicable in the determination of such controversies vary to meet the varying circumstances which give rise to the accident. Judicial experience has given no better guide than that furnished by Lord Stowell, than whom no abler judge ever presided over the Admiralty Court of the parent country. Speaking of such disasters, he remarked to the effect that there were four possibilities under which an accident of the kind may occur. In the first place, it may happen without blame being imputable to either party; as where the loss is occasioned by a storm, or any other vis major. In that case, the misfortune must be borne by the party on whom it happens to fall, the rule being, that the party not injured is not responsible to the losing party in any degree. Secondly, a misfortune of the kind may arise when both parties are to blame; as where it appears that there has been a want of due diligence or of skill on both sides; and he adds, that in such a case the rule of law is, that the loss must be apportioned between them, as having been occasioned by both. Thirdly, it may happen by the misconduct of the suffering party only; and then the rule is, that the sufferer must bear his own burden. Lastly, he remarks, that it may happen from the fault of the ship which ran the other down; and in that case the injured party is entitled to an entire compensation from the other. The Woodrop, 2 Dodson, 85.

Freedom from fault is a good defence in a cause of collision against a claim for damage promoted by an injured party, and it entitles the promoter of such a suit to full compensation from the opposite party, if proved to be guilty. Where neither party is in fault, and the damage was the result of unavoidable accident, the rule that the loss must be borne by the party on whom it fell is one of universal application. The Shannon, 1 W. Rob. 470; The Itinerant, 2 id. 243; The Locklibo, 3 id. 318; The Morning Light, 2 Wall. 560.

Under the second of the foregoing rules,-when both vessels are in fault,-the sums representing the damages are added together, and the amount is equally divided between the parties: and that rule prevails in all cases where there is mutual fault, even though one of the vessels may have been much more in fault than the other. Fault being imputed to both vessels, and the charge being proved, the inquiry which was most to blame is immaterial, as the damages must be divided between the two, according to the rule provided in the admiralty courts. Vaux v. Sheffer, 8 Moore, P. C. C. 87.

Attempt was made in the Court of Sessions in Scotland to establish an exception to that rule; and the court finding, in a case where both vessels were in fault, that the greater share of the blame rested on one, decided that her owners were liable for two-thirds of the damage. Maude & P. on Ship. (3d ed.) 470; Le Neve v. Shipping Co., 1 Shaw's Cas. 378.

Prompt appeal was taken from that decree to the House of Lords, where the decree was reversed, upon the ground that the true rule was the one laid down by Lord Stowell, that, where a misfortune of the kind happens from the want of due diligence or skill on both sides, the loss must be apportioned between them, as having been occasioned by the fault of both. Hay v. Le Neve, 2 Shaw's H. of L. Cas. 400; The Washington, 5 Jur. 1067.

Both vessels being in fault, the positive rule of the court of admiralty, says Lord Denman, requires the damage done to both ships to be added together, and the combined amount to be equally divided between the owners of the two. De Vaux v. Salvador, 4 Ad. & El. 431.

Innocent parties in cases of the kind are entitled to full compensation, but the admiralty rule as between wrong-doers is that the combined amount of the damage shall be divided between the owners of the two offending vessels. Text-writers of standard authority, as well as courts, have adopted the same rule, and hold, that, where both vessels are in fault, the loss must be apportioned between them, as having been occasioned by the fault of both. Maclachlan on Ship. (2d ed.) 286; 1 Pars. on Ship. 527; Williams & Bruce, Prac. 71.

All of these writers, and many others, lay down the rule, that, where both parties are to blame, the loss must be apportioned between them; and the authors last cited say that the rule is founded upon the principle which, from ancient times, has been applied in the Admiralty Court, that damage by a common fault shall be considered as a common loss. The Lima, 4 Jur. N. S. 147; The Aurora, Lush. Adm. 329.

Strict justice would require, said Dr. Lushington, that the burden of making good the loss should fall upon the two delinquents in proportion to their delinquency, but in practice the proportion is impossible to be ascertained. Such a rule, if adopted, would be utterly impracticable, for the reason that the court cannot apportion the loss according to the quantum of neglect or culpability on the one side and the other; hence equal apportionment is the universal rule where there is mutual fault, even though the fault on one side may be much greater than the fault on the other. The Milan, Lush. Adm. 401; The Linda, 4 Jur. N. S. 147.

Courts and text-writers in all, or nearly all, of these cases appear to have proceeded, throughout the period which they cover, upon the ground that the rule of apportionment requiring each party, where both are in fault, to bear a moiety of the loss, applies solely to the case of the wrong-doers, and that proof of entire innocence or freedom from fault is a good defence to every portion of a claim for damage, and that it entitles the promoter of a suit for such a claim to full compensation for his loss from the guilty party. Opposed to that conclusion is the case of The Milan, Lush. Adm. 401, in which Dr. Lushington remarks to the effect that the practice of the Court of Admiralty appears to have been uniform, that, where both ships are to blame, the owners of cargo equally with the owners of ships recover a moiety of their damages, except in cases where the statute prescribes a different rule; and the learned judge refers to the reported case of Hay v. Le Neve, 2 Shaw's Sc. App. 405, in support of the proposition.

Other cases are also referred to for the same purpose; but the reporter appends a note to the case, that the other cases are not reported. Enough appears in that case to show that both ships were in fault,-the one for the want of lights, and the other for the want of a sufficient lookout; and the decree was that the whole of the damages sustained by the libellants for the ship and cargo should be borne equally by the litigant parties; but it was the owners of the injured ship who promoted the claim, and it does not appear that the question before the court here received any consideration at the bar or by the court.

Two admissions are made by the court in the case of the 'Milan,' which it is important to notice, as they are undoubtedly correct, and will afford much aid in disposing of the question involved in the present record: 1. That the owner of the cargo, in such a controversy, could recover for his whole loss in an action at law. 2. That the owner of the cargo, in such a case, is to be considered as a perfectly innocent party.

Nothing is more clear than the right of a plaintiff, having suffered such a loss, to sue in a common-law action all the wrong-doers, or any one of them, at his election; and it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss. He may proceed against all the wrong-doers jointly, or he may sue them all or any one of them separately; but if he sues them all jointly, and has judgment, he cannot afterwards sue them separately, or if he sues one separately and has judgment, he cannot afterwards sue them all in a joint action: because the prior judgment against one is, in contemplation of law, an election as to that one to pursue his several remedy, but it is no bar to the suit for the same wrong against any one or more of the other wrong-doers. Murray v. Lovejoy, 2 Cliff. 196; s. c. 3 Wall. 19; Smith v. Hines, 2 Sumn. 348; Webster v. Railroad, 38 N. Y. 261.

Acts wrongfully done by the co-operation and joint agency of several persons constitute all the parties wrong-doers, and they may be sued jointly or severally; and any one of them, said Spencer, C. J., is liable for the injury done by all, if it appear either that they acted in concert, or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others. Guile v. Swan, 19 Johns. 382.

Confirmation of the second admission is not required, as sufficient has already been remarked to show that the proposition is correct, and that it is universally approved.

Shippers having lost cargo by such a disaster, may pursue their remedy by libel in personam against the owner of the offending vessel, or they may, at their election, proceed in an action at law, either in the Circuit Court, if the parties are citizens of different States, or in a State court, as in other cases where the Federal and State courts have concurrent jurisdiction. Steamboat Company v. Chase, 16 Wall. 533; The Belfast, 7 id. 644.

Suitors have a right to a common-law remedy in all cases where the common law is competent to give it. Consignees or shippers injured in their property by collision may proceed in rem in the admiralty, or they may bring a suit in personam in the same jurisdiction, or they may elect not to go into admiralty at all, and may resort to their common-law remedy in the State courts or in the Circuit Court of the United States, if they can make proper parties to give that court jurisdiction.

Common-law remedies in cases of tort, as given in common-law courts, and suits in personam in the admiralty courts of this country, bear a strong resemblance to each other in respect to parties, and the effect of a recovery by the injured party against one or all of the wrong-doers, and the extent of redress to which in innocent party is entitled against the wrong-doer. Simpson v. Hand, 6 Whart. 321.

Different systems of pleading and modes of proceeding prevail in the two jurisdictions, and in some few respects there is a difference in the rules of evidence adopted in the admiralty court from those which prevail in common-law actions. All know that the libel in the Admiralty Court takes the place of the declaration in an action at law, and that the answer is the substitute for the plea of the defendant.

Contributory negligence on the part of the libellant cannot defeat a recovery in collision cases, if it appears that the other party might have prevented the disaster, and that he also did not practise due diligence, and was guilty of negligence, and failed to exercise proper skill and care in the management of his vessel. Proof of the kind will defeat a recovery at common law; but the rule in the admiralty is, that the loss in such a case must be apportioned between the offending vessels, as having been occasioned by the fault of both; but the rule of the common law and of the admiralty is the same where the suit is promoted by an innocent party, except that the moiety rule may be applied in the admiralty, if all the parties are before the court, and each of the wrong-doers is able to respond for his share of the damage. Subject to that qualification, the remedy of the innocent party is substantially the same in the admiralty as in an action at law, the rule being, that in both he is entitled to an entire compensation from the wrong-doer for the injury suffered by the collision. Colegrove v. Railroad, 20 N. Y. 493; Catlin v. Hills, 8 C. B. 125; Vanderplank v. Miller, 1 Moo. & Mal. 169.

Goods shipped as cargo, and their owners, as in the case before the court, are innocent of all wrong; and the owners of the cargo may sue the owners of one of the ships, or both, and they may sue at law or go into the admiralty, at their election, and, having proved their case, they are as much entitled to full compensation in the admiralty as they would have been if they had elected to pursue their common-law remedy, saved to them by the proviso contained in the ninth section of the Judiciary Act. 1 Stat. 77.

Co-wrong-doers, not parties to the suit, cannot be decreed to pay any portion of the damage adjudged to the libellant, nor is it a question in this case whether the party served may have process to compel the other wrong-doers to appear and respond to the alleged wrongful act.

Even suppose that the case of the 'Milan' is a correct exposition of the admiralty law, as administered in the jurisdiction where the decision was made, still it cannot control the question before the court, for the reason that the rule of practice here is different, as is clearly shown by the judgment of this court delivered at the last term of the court. The Alabama and The Game-cock, 92 U.S. 695.

Counsel of experience and ability attempted to maintain in that case the same theory as that now advanced in argument here by the appellees, and they cited The Milan, Lush. Adm. 403, The Atlas, 4 Ben. 28, S.C.. 10 Blatch. 460, in support of the proposition which they desired the court to adopt. Suffice it to remark, by the way of explanation, that all the parties interested in the case then under argument were before the court; which is all that need be said in respect to the operation of such a theory, if applied in a case where the parties interested were duly served and were present, and it did not appear that each of the respondents was not able to respond for a moiety of the damages suffered by the owner of the cargo.

Contingencies are also portrayed, in which it is conceded that the theory may be applied without serious injustice or inconvenience; but the court proceeds to say, that it would seem to be just that the owner of the cargo who is supposed to be free from fault should recover the damage done thereto from those who caused it, adding, that if he cannot recover from either of them such party's due share, he ought to be able to recover it from the other, and that the same reason for a division of the damage does not apply to the owner of the cargo as applies to the owners of the ships. Remarks are then made to show that the moiety rule is both just and expedient between the ships where both are in fault; but the court proceeds to say, that if either is unable to pay his moiety of damage, there is no good reason why the owner of the cargo should not have a remedy over against the other, and finally remarks, that the moiety rule was adopted for the better distribution of justice between wrong-doers, and that it ought not to be extended so far as to inflict positive loss to innocent parties. The Gregory, 9 Wall. 516.

Much care was taken in framing the decree in that case, which of itself shows to a demonstration that the court never intended to adopt a theory which would fail to give innocent parties full compensation suffered by a collision, and that they never meant to extend the moiety rule so as to do injustice to an innocent tow or to the owner of cargo. Such a result can never be sanctioned by the justices of this court, so long as they adhere to the rule that when a third party has sustained an injury to his property, from the co-operating consequences of two causes, though the persons producing them may not be in intentional concert to occasion such a result, the injured person is entitled to compensation for his loss from either one or both of them, according to the circumstances of the incident. The New Philadelphia, 1 Black, 76; Boyer v. Sturgis, 24 How. 122.

Except when both parties are to blame, the offending party can recover nothing, whether he pursues his remedy in the admiralty or at common law. Where both are to blame, neither can recover any thing at common law, but the admiralty requires each to suffer a moiety of the loss, to be ascertained in the manner already explained.

Parties without fault, such as shippers and consignees, bear no part of the loss in collision suits, and are entitled to full compensation for the damage which they suffer from the wrong-doers, and they may pursue their remedy in personam, either at common law or in the admiralty, against the wrong-doers or any one or more of them, whether they elect to proceed at law or in the admiralty courts.

Such a party is not required in any event to bear any portion of the loss suffered by others, the rule being, that where the collision occurs exclusively from natural causes, without any fault of either of the colliding vessels, the loss shall rest where it happens to fall, on the principle that no one is responsible for such a disaster, when produced by causes over which human skill and prudence can exercise no control.

Inevitable accident is a good defence in such a controversy, where both vessels are free from blame; but it is utterly unavailing if either or both were in fault. Where the vessel of the respondent is alone in fault, the libellant is entitled to recover full compensation for his damages; and the rule is, that if the vessel of the libellant is alone in fault, the decree must be for the respondent, that the libel be dismissed.

Cases also arise where both vessels are in fault; and the repeated decisions of this court have established the rule, that in that contingency the damages shall be equally apportioned between the offending vessels, as having been occasioned by the fault of both. The Catharine, 17 How. 177; The Sunnyside, 91 U.S. 216; The Continental, 14 Wall. 355; The Morning Light, 2 id. 560; The Pennsylvania, 24 How. 313.

Innocence entitles the loser to full compensation from the wrong-doer, and it is a good defence against all claims from those who have lost. Individual fault renders the party liable to the innocent loser, and is a complete answer to any claim made by the faulty party, except in a case where there is mutual fault, in which case the rule is that the combined amount of the loss shall be equally apportioned between the offending vessels.

Decree reversed and cause remanded, with directions to reverse the decree of the District Court, and enter a new decree in favor of the libellants for the entire damages as ascertained by the commissioner.

MR. JUSTICE BRADLEY did not sit in this case.

title: The Atlas/Opinion of the Court


text: Talk:The Atlas/Opinion of the Court

title: Talk:The Atlas/Opinion of the Court


text:
Kimball v. Evans

ERROR to the Supreme Court of the State of Ohio.

Pending a suit in the District Court of Stark County, Ohio, a petition was filed, under the act of March 2, 1867 (14 Stat. 558), for its removal to the Circuit Court of the United States for the Northern District in that State. This petition presenting for consideration, in the opinion of the District Court, difficult and important questions, the cause was reserved, in accordance with the practice in Ohio, to the Supreme Court 'for its decision on said petition for the removal of the cause to the Circuit Court.' The Supreme Court, after hearing, dismissed the petition and remanded the cause to the District Court 'for further proceedings according to law.'

To reverse this judgment the present writ of error was brought.

Submitted on printed arguments by Mr. H. E. Paine for the defendant in error.

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

title: Kimball v. Evans


text: Talk:Kimball v. Evans

title: Talk:Kimball v. Evans


text:
Kimball v. Evans/Opinion of the Court

It is clear we have no jurisdiction in this cause. The judgment of the Supreme Court is not the final judgment in the suit. It disposed finally of one of the questions involved in the suit, but not of the suit itself. The suit is still pending in the District Court, and it is not impossible that the parties now complaining may be satisfied with the judgment which they may in the end be able to secure in the State courts. If not, after a final judgment has in fact been rendered by the highest court of the State in which a decision in the suit can be had, the case may be again brought here for a determination of the questions arising upon the petition for removal. But in the present condition of the record the writ must be

Dismissed.

title: Kimball v. Evans/Opinion of the Court


text: Talk:Kimball v. Evans/Opinion of the Court


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Page:A short history of social life in England.djvu/294

274 his whip, away goes the cart, and there swings my gentleman kicking in the air. The hangman does not give himself the trouble to put them out of their pain; but some of their friends or relations do it for them."

But if such accounts as these are gruesome, more gruesome still are those which describe the terrible prisons in which many eighteenth-century debtors languished till they died.

"A prison is the grave of the living, where they are shut up from the world, and the worms that gnaw upon them, their own thoughts, the gaoler and their creditors." Horrible, indeed, were the dungeons into which our forefathers were thrown for debt; heavily laden with chains, with no regular allowance of food, their beds of straw only, with bad smells and dirt indescribable, they lingered in agony, till death relieved their sufferings.

Of lesser punishments there were divers sorts all over the country. By the side of many a duck pond on the village green stood the stocks, wherein vagrants, drunkards and others were securely fastened by the heels until they had repented of their sins. Near by was the ducking-stool, wherein bakers who served underweight bread, witches, or scolding women were seated and


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Page:Haiti- Her History and Her Detractors.djvu/381

Rh The Americans as a people are patient, and being of an honest nature and not over-ready in thinking evil of others they are thus easily taken in. But once convinced of the corruptness of any of their functionaries they will allow no consideration to interfere with the course of justice in prosecuting those who have betrayed their trust, irrespective of their wealth or their social and political standing. This goes to prove in the best way how wrong it is to stigmatize a whole nation on account of the transgression of a few men of unsound morals.

Although public opinion in Haiti has not yet acquired the authority and influence it enjoys elsewhere, yet given favorable circumstances it does not fail to act, and upon occasion loudly demands the prosecution of those who are guilty of malversation. A recent case has just established that the Haitian people are bent upon causing the public funds to be respected and in bringing the strictest integrity into the management of their affairs; they did not hesitate to hand over to justice all those who were implicated in the "consolidation" scandal. The high standing and the services rendered in the past by many of those who were indicted in connection with this affair in no way influenced the jury or the judges, who unflinchingly pronounced on them the sentence prescribed by the law. A nation capable of punishing in this manner some of its most prominent men cannot with any degree of truth be termed a nation of corrupt men. From whence would the courage and energy to inflict the punishment which these misdemeanors deserved have come if the entire people did not condemn the fault? All the world over men yield to the same temptations; everywhere the thirst for gold provokes social catastrophes and many a time stains the honor of the best families. Haitians are mere human beings, swayed by human passions like the rest of mortals. Some of them lacking strength of mind have yielded to temptation. But it does not


text:
Talty v. Freedman's Savings and Trust Company

ERROR to the Supreme Court of the District of Columbia.

This was replevin by the plaintiff to recover a collateral security pledged to one Kendig, a broker, and by him sold to the defendant. Under the instructions of the court below, the jury found a verdict for the defendant; judgment was rendered thereon, and the plaintiff sued out this writ of error. The facts are fully set forth in the opinion of the court.

Mr. Joseph H. Bradley for the plaintiff in error.

The chattel replevied was a mere chose in action, and was not assigned by the owner. His indorsement in blank did not, at law, transfer any title to it.

Kendig had merely the option to purchase the collateral if the note was not paid.

If the plaintiff's testimony was true, no tender or offer of payment to the defendant was necessary. Wilson v. Little et al., 2 Comst. 443.

Mr. Enoch Totten for the defendant in error.

The rule of exemption as to tender does not apply in a suit against a bona fide purchaser to recover possession of the pledge. Tender to the defendant of the amount due by the plaintiff on his note was necessary to enable him to recover. Demainbray v. Metcalf, 2 Vern. 691; Little v. Baker, Hoff. Ch. 487; Jarvis's Adm. v. Rodgers, 15 Mass. 408; Baldwin v. Ely, 9 How. 580; 3 Pars. on Contr. 274; Story on Bailm., sect. 327; Lewis v. Mott, 36 N. Y. 395; Donald v. Suckling, Law Rep. 1 Q. B. 585; Johnson v. Stear, 15 C. B. N. S. 330.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Talty v. Freedman's Savings and Trust Company


text:
Talty v. Freedman's Savings and Trust Company/Opinion of the Court

This was an action of replevin, prosecuted by the plaintiff in error. The judgment was against him. The bill of exceptions discloses all the evidence given by both parties. The facts lie within a narrow compass, and, except as to one point, which in our view is of no consequence in this case, there is no disagreement between them.

Talty had a claim against the city of Washington for work and materials, amounting to $6,096.75. He submitted it to the proper authority, and received the usual voucher. On the 4th of January, 1872, the claim was approved by the commissioners of audit, and a certificate to that effect was given to him. On the 6th of that month he employed Kendig, a broker, to negotiate a loan for him. With that view he placed in Kendig's hands his own note for $3,000, having sixty days to run, with interest at the rate of ten per cent per annum, payable to his own order, and indorsed by him in blank. He also placed in the hands of Kendig, to be used as collateral, his claim against the city, indorsed in blank also. The same day Kendig negotiated the loan and paid Talty the amount of the note, less the discount. Kendig sold the claim against the city to the defendant for ninety-six cents on the dollar. The money was paid to him. The purchase was made in good faith, and without notice of any right or claim on the part of Talty. With the proceeds of this sale Kendig took up the note. A few days before its maturity Talty called on Kendig and offered to pay the note, and demanded back the collateral. Kendig declined to accede to the proposition. He insisted that the understanding between him and Talty was that he was to receive no commission for negotiating the loan, but that he was to have instead the right to sell or take the claim against the city, if he chose to do so, at ninety cents on the dollar. He offered to pay Talty for the claim, making the computation at that rate, and deducting the amount of the note. This Talty refused, and insisted that Kendig had no authority with respect to the claim but to sell, in the event of default in the payment of the note at maturity. Each party testified accordingly. Subsequently, and after the maturity of the note, Talty demanded from the defendant in error the vouchers relating to the claim. The defendant refused to give them up, and this suit was thereupon instituted. The marshal took them under the writ of replevin, and delivered them to the plaintiff.

No tender was made by Talty to the defendant in error, nor to Kendig, and nothing was said by him upon the subject of paying his note to either, except the offer to Kendig, as before stated.

After receiving back the collateral, Talty was paid the full amount of it by the commissioners of the sinking fund of the city. The only dispute between the parties as to the facts was that in relation to the authority of Kendig touching the claim.

Upon this state of the evidence the court instructed the jury to find for the defendant, and to assess the damages at the value of the claim. This was done, and judgment was entered upon the verdict. The instruction was excepted to.

Before entering upon the examination of the merits of the controversy, it may be well to consider for a moment the situation of the several parties. Talty has received and holds the proceeds of his note and the full amount of the collateral. Kendig holds the note and the amount of the collateral, less four per cent. The defendant in error, the bona fide purchaser of the claim, is out of pocket the amount paid for it to Kendig, and has the burden of this litigation and the security afforded by the replevin bond of Talty.

The question to be determined is, whether a tender to the defendant in error by Talty of the amount due on his note before bringing this suit was indispensable to entitle him to recover.

Kendig was not a factor with a mere lien. He was a pledgee. The collateral was placed in his hands to secure the payment of the note. It was admitted by Talty that Kendig was authorized to sell it if the note were not paid at maturity. Kendig had a special property in the collateral. He was a pawnee for the purposes of the pledge. Judge Story says (Bailm. sects. 324-327), 'The pawnee may by the common law deliver over the pawn to a stranger for safe custody without consideration; or he may sell or assign all his interest in the pawn; or he may convey the same interest conditionally, by way of pawn, to another person, without in either case destroying or invalidating his security. But if the pawnee should undertake to pledge the property (not being negotiable securities) for a debt beyond his own, or to make a transfer thereof as if he were the actual owner, it is clear that in such case he would be guilty of a breach of trust, and his creditor would acquire no title beyond that held by the pawnee.'

'Whatever doubt may be indulged in, in the case of a mere factor, it has been decided, in the case of a strict pledge, that, if the pledgee transfers the same to his own creditor, the latter may hold the pledge until the debt of the original owner is discharged.'

Numerous authorities are cited in support of these propositions. The subject as to the point last mentioned was learnedly examined in Jarvis's Adm. v. Rodgers, 15 Mass. 369. That was the case of a re-pledge by the first pledgee. The rule of the text as to the rights of the sub-pledgee was distinctly affirmed.

The case of Lewis v. Mott, 36 N. Y. 395, was in some of its leading points strikingly like the case before us. There, Brown had placed certain collaterals in the hands of Howe to secure the payment of two promissory notes of Brown held by Howe; Howe sold the notes and collaterals to Varnum; Brown offered to pay Varnum the amount of the notes, and demanded the collaterals; Varnum refused to give them up, and Brown sued for them. The court said, 'It must be conceded that Varnum, by the purchase of those securities from Howe, acquired the lien and interest of Howe, whatever that may have been; and the plaintiff's assignee, to have entitled himself to a redelivery of these securities, must have tendered the amount of the lien. There was simply an offer to pay Varnum the amount due upon these notes. It was unattended with any tender of the amount due, and was insufficient to extinguish the lien and thus entitle Brown to the return of the notes. . . . The offer to pay is not the equivalent for an actual tender. Bateman v. Pool, 15 Wend. 637; Strong v. Black, 46 Barb. 222; Edmonson v. McLeod, 16 N. Y. 543.' See also Baldwin v. Ely, 9 How. 580; Merchants' Bank v. The State Bank, 10 Wall. 604.

The English law is the same. In Donald v. Suckling, Law Rep. 1 Q. B. 585, the case was this: A. deposited debentures with B. as security for the payment of a bill indorsed by A. and discounted by B. It was agreed, that, if the bill was not paid when due, B. might sell or otherwise dispose of the debentures. Before the maturity of the bill, B. deposited the debentures with C., to be held as security for a loan by him to B. larger than the amount of the bill. The bill was dishonored, and, while it was unpaid, A. sued C. in detinue for the debentures. It was held that A. could not maintain the suit without having paid or tendered to C. the amount of the bill. The case was elaborately considered by the court. See also Moore v. Conham, Owen, 123; Ratcliffe v. Davis, Yelv. 178; Johnson v. Cumming, Scott's C. B. N. S. 331.

A tender to the second pledgee of the amount due from the first pledgor to the first pledgee extinguishes ipso facto the title of the second pledgee; but that there can be no recovery against him without tender of payment is equally well settled. Donald v. Suckling, supra; Jarvis's Adm. v. Rodgers, supra; S.C.. 13 Mass. 105.

But it is suggested that the note was in the hands of Kendig, and that Talty could not, therefore, safely pay the amount due upon it to the holder of the collateral. The like fact existed in Donald v. Suckling. It is not adverted to in the arguments of counsel, nor in the opinions of the judges in that case. It could not, therefore, have been regarded by either as of any significance. The answer here to the objection is obvious. The note, a few days before its maturity, was in the hands of Kendig. There being no proof to the contrary, it is to be presumed to have remained there. This suit was commenced after it matured. Talty might then have paid the amount due upon it to the defendant in error, and could thereupon have defended successfully in a suit on the note, whether brought by Kendig or any indorsee taking it after due. He might also, after making the tender, have filed his bill in equity, making Kendig and the savings-bank defendants, and thus have settled the rights of all the parties in that litigation. Having sued at law without making the tender, it is clear he was not entitled to recover.

The instruction given by the court to the jury was, therefore, correct.

The proceeding and judgment were according to the local law regulating the action of replevin in the District of Columbia.

In the discussion here our attention was called only to the question of tender: nothing was said as to the rule of damages laid down by the court below.

There is another question arising upon the record, and that is, whether the defendant in error, being a bona fide purchaser, did not, under the circumstances, acquire the absolute ownership of the claim. Story on Agency, sect. 127; Addis v. Baker, 2 Anst. 229; McNiel v. The Tenth National Bank, 46 N. Y. 325; Fatman v. Lobach, 1 Duer, 524; Weirick v. The Mahoning County Bank, 16 Ohio, 297; Fullerton v. Sturgess, 4 Ohio St. 529.

But as the point has not been argued, we express no opinion upon the subject.

Judgment affirmed.


text: Talk:Talty v. Freedman's Savings and Trust Company/Opinion of the Court


text:
Brant v. Virginia Coal and Iron Company

APPEAL from the Circuit Court of the United States for the District of West Virginia.

In April, 1831, Robert Sinclair, of Hampshire County, Va., died, leaving a widow and eight surviving children. He was, at the time of his death, possessed of some personal property, and the real property in controversy, consisting of one hundred and ten acres. By his last will and testament he made the following devise: 'I give and bequeath to my beloved wife, Nancy Sinclair, all my estate, both real and personal; that is to say, all my lands, cattle, horses, sheep, farming utensils, household and kitchen furniture, with every thing that I possess, to have and to hold during her life, and to do with as she sees proper before her death.' The will was duly probated in the proper county.

In July, 1839, the widow, for the consideration of $1,100, executed a deed to the Union Potomac Company, a corporation created under the laws of Virginia, of the real property thus devised to her, describing it as the tract or parcel on which she then resided, and the same which was conveyed to her 'by the last will and testament of her late husband.' As security for the payment of the consideration, she took at the time from the company its bond and a mortgage upon the property. The mortgage described the property as the tract of land which had on that day been conveyed by her to the Union Potomac Company.

In 1854 this bond and mortgage were assigned to the complainant and Hector Sinclair, the latter a son of the widow, in consideration of $100 cash, and the yearly payment of the like sum during her life. Previous to this time, Brant and Hector Sinclair had purchased the interest of all the other heirs, except Jane Sinclair, who was at the time, and still is, an idiot, or an insane person; and such purchase is recited in the assignment, as is also the previous conveyance of a life-interest to the company.

In July, 1857, these parties instituted suit for the foreclosure of the mortgage and sale of the property. The bill described the property as a tract of valuable coal land which the company had purchased of the widow, and prayed for the sale of the estate purchased. Copies of the deed of the widow and of the mortgage of the company were annexed to the bill. In due course of proceedings a decree was obtained directing a sale, by commissioners appointed for that purpose, of the property, describing it as 'the lands in the bill and proceedings mentioned,' if certain payments were not made within a designated period. The payments not being made, the commissioners, in December, 1858, sold the mortgaged property to one Patrick Hammill, who thus succeeded to all the rights of the Union Potomac Company.

The defendant corporation, the Virginia Coal and Iron Company, derive their title and interest in the premises by sundry mesne conveyances from Hammill, and in 1867 went into their possession. Since then it has cut down a large amount of valuable timber, and has engaged in mining and extracting coal from the land, and disposing of it.

Brant, having acquired the interest of Hector Sinclair, brought the present suit to restrain the company from mining and extracting coal from the land, and to compel an accounting for the timber cut and the coal taken and converted to its use.

The court below dismissed the bill, whereupon Brant brought the case here.

Argued by Mr. John J. McKinnon and Mr. George W. Brandt for the appellant.

Under the will, Nancy Sinclair took only a life-estate. The testator having failed to devise the fee, it descended to his heirs. She had no power, nor did she attempt to divest them of it.

Real and personal property of an intestate is, under the statute of Virginia, distributed equally among his heirs-at-law. The rule is the same where the owner in fee of lands devises them to another for life, without making any specific disposition of the inheritance.

A rule never to be lost sight of in the construction of wills is, that the heir is not to be disinherited without an express devise, or implication importing so strong a probability, that an intention to the contrary cannot be supposed. 1 Redf. on Wills, p. 425, n. 5, p. 434, sect. 18; Allen's Ex'r v. Allen, 18 How. 391.

Negative words are not sufficient to exclude the title of the heir. There must be an actual gift to some other definite object. Fitch v. Weber, 6 Hare, 145; 1 Redf. on Wills, 425.

Courts will look at the circumstances under which the devisor makes his will, as to the state of his property, his family, and the like. 1 Redf. on Wills, 425.

In a deed, the words govern the intention. In a will, the intention governs the words. Edwards v. Bibb, 43 Ala. 666.

It is an old and equitable rule, that the reversion is not to be defeated, or the heirs despoiled by implication, without express words. Dashwood v. Peyton, 18 Ves. 40.

No words authorizing Mr. Sinclair to sell and convey the fee can be found in the will, either in connection with the life-estate or elsewhere.

The leading case of Bradley v. Westcott, 13 Ves. 445, is strikingly analogous to that at bar. In both there is an express devise for life, followed by an ambiguous authority or discretion; and in each the authority or power is confined to natural life.

Applying the doctrine in that case to this, it cannot be contended that the still less potent and greatly more ambiguous language following the express devise for life in this case is to have a different meaning or be differently construed. Smith v. Bell, 6 Pet. 80, Gregory v. Cowgill, 19 Mo. 415, Boyd et al. v. Strahan, 36 Ill. 355, Seigwald v. Seigwald, 37 id. 431, and Cox et al. v. Butt et al., 22 Ark. 568, are to the same effect as Bradley v. Westcott, supra, and settle the question as to what estate Mrs. Sinclair took, and what power she had under the will.

The complainant is in no manner or way estopped by reason of the foreclosure proceeding or by the sale thereunder. To estop him in any view of the case, the defence must show that his language or conduct was the direct motive or inducement to the purchase. This has not even been attempted. Ware v. Cowles, 24 Ala. 446; Jones v. Cowles, 26 id. 612; Brewer v. Brewer, 19 id. 431; Morton v. Hodgdon, 32 Me. 327; Cambridge Inst. v. Rittlefield, 6 Cush. 216; Watkins v. Peck, 13 N. H. 360; Darlington's Appeal, 1 Harris, 430; Carpenter v. Stilwell, 1 Kern. 61.

Ignorance of the true state of the title on the part of the purchaser must concur with wilful misrepresentation or fraudulent concealment on the part of the vendor. Crest v. Jack, 3 Watts, 238; Hepburn v. McDowell, 17 Serg. & R. (Pa.) 383; Ferris v. Coover, 10 Cal. 509; Casey v. Inloes, 1 Gilm. 430; Lawrence v. Brown, 1 Seld. 394; Hill v. Epley, 7 Casey, 331; Goodson v. Beacham, 24 Ga. 150; Parker v. Parker, 2 Met. 421.

No estoppel will arise in the absence of actual fraud, unless the purchaser was not only ignorant of the true state of the title, but had no means of acquiring knowledge by a recourse to the record. Bigelow v. Topliff, 25 Vt. 273; Carter v. Champion, 8 Conn. 554.

Argued by Mr. E. Wyatt Blanchard for the appellee.

Notwithstanding the assumed defect in Mrs. Sinclair's original title under the will, the appellant is entitled to no relief, and is estopped from denying the validity of the appellee's title: first, as privy in estate of Mrs. Sinclair, under whom he claimed in the foreclosure proceedings; second, by his own declarations of record in those proceedings, his non-assertion at that time of the title he now claims, and by various acts in connection with the foreclosure sale, and subsequently thereto.

It is not necessary to the application of the doctrine of estoppel that fraud in fact should be charged or shown. It rests on a broad principle of equity, which will not permit a party to a transaction, even when made under a mistake of title, to receive its fruits, and afterwards repudiate it. Assertions innocently made, but which mislead others; silence as to conflicting claims, or as to facts which should have been disclosed; recitals in deeds; descriptions of title; covenants; warranties,-all or any will give rise to the application of this principle for the protection of a purchaser, in the class of cases known as cases of constructive fraud.

It is a principle of universal application, that a person assenting to an act, and deriving and enjoying a title under it, shall not be permitted to impeach it. 2 Wash. Real. Prop. b. 3, p. 472; 11 How. 322, 325, 326; 5 Johns. Ch. 184; 1 id. 354; 12 Wall. 358; 13 id. 291.

Nor can any controlling authority be found for applying the rule caveat emptor to this class of cases.

The evidence is uncontradicted, that the sum agreed to be paid to Mrs. Sinclair was at the time the full value of the property in fee-simple, subject to the life-estate reserved by her. Whatever, therefore, she conveyed was to be paid for as a fee-simple estate. Her acceptance of the mortgage in fee, to secure the payment of the purchase-money, was a distinct act in pais, recognizing the existence of a title in fee in the Union Potomac Company.

In the application of the doctrine of estoppel, the question whether the acts done by the parties are legally effectual is excluded. The sole question is, What did they intend to do? In this case, the conclusion is irresistible, that Mrs. Sinclair intended to part with the fee for a then fair price. Her opinions, purposes, or unknown views must yield to the force of her solemn acts; and for the protection of others against her and her privies in estate, if the purchaser believed himself acquiring a fee as against her and them, his estate is a fee. Although it is not intended to charge that the complainant in this and in the foreclosure case committed the fraud of conducting that proceeding with his present opinion of his title, or with the purpose of selling the lands, receiving the proceeds, and then reclaiming them, the effect is the same as if he had acted with such guilty purpose. Every line of the record of that proceeding shows that the officers of the court did not sell the life-estate of Mrs. Sinclair, but that they did offer 'the lands mentioned in the proceedings,' with that life-estate reserved, in such explicit terms, that no successful bidder could fail to conclude that he was the purchaser of the fee.

The power of disposition of Mrs. Sinclair, under the will of her husband, equally affects all descriptions of the property devised. Nothing is to be found in the will to indicate any purpose on his part to distinguish her dominion over his real and personal estate.

The construction claimed by the appellant requires that the words of power shall be held to refer to the words creating the estate, so as to read, 'to have and to hold during life, and to do with as she sees proper, according to the powers of a life-tenant.' When the testator gave all to his wife, to have and to hold during her life, he, without superadded words, gave every power incident to that estate. The appellant, in effect, rejects the words of power, and treats them as surplusage.

That construction rests on the presumed intention of the testator to die intestate as to the remainder of his effects, real and personal, in order that they might pass to his heirs-at-law subject to the life-estate devised to his wife; but such intention is not to be presumed if any other construction be possible, especially where a devise like this is of the testator's entire estate. 2 Preston on Estates, 103. Where the devise is general, with words added implying a power of disposition, the devisee takes a fee.

Where an express estate for life is given with such words of power added, the devisee takes an estate for life, and the power must be exercised. 2 Preston on Estates, 81, 82; Cruise, tit. Devise, c. 13, sect. 5; Jackson v. Robins, 16 Johns. 537; Stevens v. Winship, 1 Pick. 318; Reid v. Shergold, 10 Ves. 370; Guthrie v. Guthrie, 1 Call, 7; Shermer v. Shermer's Ex'r, 1 Wash. 266; Burwell v. Anderson, 3 Leigh, 355; 2 Johns. 392; May v. Joynes, 20 Gratt. 692. The power is a distinct gift, and is not limited to a disposition of the life-interest, but will pass the fee. 3 Lomax, Dig. 317; 2 Preston, 81, 82; 8 Viner's Abr. 234, 235, sects. 2, 3, 4, 9, 8, 14. Nor is any special form of words necessary to give the power of disposition of the fee to the life-tenant.

The current of authority is unbroken, that words of power following a gift for life, and uncontrolled by other parts of the will, give either a fee, or a life-estate with power to dispose of the fee. Mrs. Sinclair's deed, therefore, either conveyed, and was meant to convey, nothing, or was intended to operate according to the legal effect of its words upon the reversion.

MR. JUSTICE FIELD stated the case, and delivered the opinion of the court.

title: Brant v. Virginia Coal and Iron Company


text: Talk:Brant v. Virginia Coal and Iron Company


text:
Page:A lover's tale (Tennyson, 1879).djvu/60

56 Paused in their course to hear me, for my voice Was all of thee: the merry linnet knew me, The squirrel knew me, and the dragonfly Shot by me like a flash of purple fire. The rough briar tore my bleeding palms; the hemlock Brow-high, did strike my forehead as I past; Yet trod I not the wildflower in my path, Nor bruised the wildbird's egg.

Was this the end? Why grew we then together in one plot? Why fed we from one fountain? drew one sun? Why were our mothers' branches of one stem? Why were we one in all things, save in that Where to have been one had been the cope and crown Of all I hoped and fear'd?—if that same nearness Were father to this distance, and that one Vauntcourier to this double? if Affection


text:
Brant v. Virginia Coal and Iron Company/Opinion of the Court

The disposition of the case depends upon the construction given to the devise of Robert Sinclair to his widow, and the operation of the foreclosure proceedigns as an estoppel upon the complainant from asserting title to the property.

The complainant contends that the widow took a life-estate in the property, with only such power as a life-tenant can have, and that her conveyance, therefore, carried no greater interest to the Union Potomac Company. The defendant corporation, on the other hand, insists, that, with the life-estate, the widow took full power to dispose of the property absolutely, and that her conveyance accordingly passed the fee.

We are of opinion that the position taken by the complainant is the correct one. The interest conveyed by the devise to the widow was only a life-estate. The language used admits of no other conclusion; and the accompanying words, 'to do with as she sees proper before her death,' only conferred power to deal with the property in such manner as she might choose, consistently with that estate, and, perhaps, without liability for waste committed. These words, used in connection with a conveyance of a leasehold estate, would never be understood as conferring a power to sell the property so as to pass a greater estate. Whatever power of disposal the words confer is limited by the estate with which they are connected.

In the case of Bradley v. Westcott, reported in the 13th of Vesey, the testator gave all his personal estate to his wife for her sole use for life, to be at her full, free, and absolute disposal and disposition during life; and the court held, that, as the testator had given in express terms an interest for life, the ambiguous words afterwards thrown in could not extend that interest to the absolute property. 'I must construe,' said the Master of the Rolls, 'the subsequent words with reference to the express interest for life previously given, that she is to have as full, free, and absolute disposition as a tenant for life can have.'

In Smith v. Bell, reported in the 6th of Peters, the testator gave all his personal estate, after certain payments, to his wife, 'to and for her own use and disposal absolutely,' with a provision that the remainder after her decease should go to his son. The court held that the latter clause qualified the former, and showed that the wife only took a life-estate. In construing the language of the devise, Chief Justice Marshall, after observing that the operation of the words 'to and for her own use and benefit and disposal absolutely,' annexed to the bequest, standing alone, could not be questioned, said, 'But suppose the testator had added the words 'during her natural life,' these words would have restrained those which preceded them, and have limited the use and benefit, and the absolute disposal given by the prior words, to the use and benefit and to a disposal for the life of the wife. The words, then, are susceptible of such limitation. It may be imposed on them by other words. Even the words 'disposal absolutel' may have their character qualified by restraining words connected with and explaining them, to mean such absolute disposal as a tenant for life may make.'

The Chief Justice then proceeded to show that other equivalent words might be used, equally manifesting the intent of the testator to restrain the estate of the wife to her life, and that the words, 'devising a remainder to the son,' were thus equivalent.

In Boyd v. Strahan, 36 Ill. 355, there was a bequest to the wife of all the personal property of the testator not otherwise disposed of, 'to be at her own disposal, and for her own proper use and benefit during her natural life;' and the court held that the words 'during her natural life' so qualified the power of disposal, as to make it mean such disposal as a tenant for life could make.

Numerous other cases to the same purport might be cited. They all show, that where a power of disposal accompanies a bequest or devise of a life-estate, the power is limited to such disposition as a tenant for life can make, unless there are other words clearly indicating that a larger power was intended.

The position that the complainant is estopped, by the proceedings for the foreclosure of the mortgage, from asserting title to the property, has less plausibility than the one already considered. There was nothing in the fact that the complainant and Hector Sinclair owned seven-eighths of the reversion, which prevented them from taking a mortgage upon the life-estate, or purchasing one already executed. There was no misrepresentation of the character of the title, which they sought to subject to sale by the foreclosure suit. The bill of complaint in the suit referred to the deed from the widow to the Union Potomac Company, and to the mortgage executed to secure the consideration; and copies were annexed. The deed described the property sold as the tract conveyed to the widow by the last will and testament of her late husband. The mortgage described the property as the tract of land conveyed on the same day to the mortgagor. The decree ordering the sale described the property as 'the lands in the bill and proceedings mentioned.' The purchaser was bound to take notice of the title. He was directed to its source by the pleadings in the case. The doctrine of caveat emptor applies to all judicial sales of this character; the purchaser takes only the title which the mortgagor possessed. And here, as a matter of fact, he knew that he was obtaining only a life-estate by his purchase. He so stated at the sale, and frequently afterwards. There is no evidence that either the complainant or Hector Sinclair ever made any representations to the defendant corporation to induce it to buy the property from the purchaser at the sale, or that they made any representations to any one respecting the title, inconsistent with the fact; but, on the contrary, it is abundantly established by the evidence in the record, that from the time they took from the widow the assignment of the bond and mortgage of the Union Potomac Company in 1854, they always claimed to own seven-eighths of the reversion. The assignment itself recited that the widow had owned, and had sold to that company, a life-interest in the property, and that they had acquired the interest of the heirs.

It is difficult to see where the doctrine of equitable estoppel comes in here. For the application of that doctrine there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as to amount to constructive fraud, by which another has been misled to his injury. 'In all this class of cases,' says Story, 'the doctrine proceeds upon the ground of constructive fraud or of gross negligence, which in effect implies fraud. And, therefore, when the circumstances of the case repel any such inference, although there may be some degree of negligence, yet courts of equity will not grant relief. It has been accordingly laid down by a very learned judge that the cases on this subject go to this result only, that there must be positive fraud or concealment, or negligence so gross as to amount to constructive fraud.' 1 Story's Eq. 391. To the same purport is the language of the adjudged cases. Thus it is said by the Supreme Court of Pennsylvania, that 'the primary ground of the doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.' Hill v. Eppley, 31 Penn. St. 334; Henshaw v. Bissell, 18 Wall. 271; Biddle Boggs v. Merced Mining Company, 14 Cal. 368; Davis v. Davis, 26 id. 23; Commonwealth v. Moltz, 10 Barr, 531; Copeland v. Copeland, 28 Me. 539; Delaplaine v. Hitchcock, 6 Hill, 616; Havis v. Marchant, 1 Curt. C. C. 136; Zuchtmann v. Robert, 109 Mass. 53. And it would seem that to the enforcement of an estoppel of this character with respect to the title of property, such as will prevent a party from asserting his legal rights, and the effect of which will be to transfer the enjoyment of the property to another, the intention to deceive and mislead, or negligence so gross as to be culpable, should be clearly established.

There are undoubtedly cases where a party may be concluded from asserting his original rights to property in consequence of his acts or conduct, in which the presence of fraud, actual or constructive, is wanting; as, where one of two innocent parties must suffer from the negligence of another, he through whose agency the negligence was occasioned will be held to bear the loss; and where one has received the fruits of a transaction, he is not permitted to deny its validity whilst retaining its benefits. But such cases are generally referable to other principles than that of equitable estoppel, although the same result is produced; thus the first case here mentioned is the affixing of liability upon the party who from negligence indirectly occasioned the injury, and the second is the application of the doctrine of ratification or election. Be this as it may, the general ground of the application of the principle of equitable estoppel is as we have stated.

It is also essential for its application with respect to the title of real property that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge. Where the condition of the title is known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. Crest v. Jack, 3 Watts, 240; Knouff v. Thompson, 4 Harris, 361.

Tested by these views, the defence of estoppel set up in this case entirely fails.

The decree of the Circuit Court must be reversed and the cause remanded for further proceedings in accordance with this opinion; and it is so

Ordered.

MR. JUSTICE SWAYNE and MR. JUSTICE DAVIS dissented.


text: Talk:Brant v. Virginia Coal and Iron Company/Opinion of the Court


text:
The Juniata (93 U.S. 337)

APPEALS from the Circuit Court of the United States for the District of Louisiana.

Argued by Mr. Assistant Attorney-General Smith and Mr. Thomas J. Durant for the libellants, and by Mr. Morton P. Henry for the claimants.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: The Juniata (93 U.S. 337)


text: Talk:The Juniata (93 U.S. 337)

title: Talk:The Juniata (93 U.S. 337)