text:
McCarthy v. Mann/Opinion of the Court

APPEAL from the Circuit Court for the District of Minnesota.

McCarthy filed a bill in the court below against Mann (under a statute of Minnesota which enables any person claiming title to unoccupied land the title of which is claimed adversely to proceed in that way) to have the question of title to a piece of unoccupied land settled by the said court.

Both parties claimed under one French, in different ways, now to be mentioned.

The act establishing, in 1849, the Territory of Minnesota reserved certain sections of the public lands, to be surveyed, to the use of the public schools.

In 1850, one Peter Poncin, owning a warrant, caused the same, with the consent of the proper officers, to be located on a tract of the land thus reserved, and soon afterwards conveyed it by deed to one Pepin, his heirs and assigns, the deed being a deed of warranty, with the usual covenants 'with the said Pepin, his heirs and assigns,' and, among them, covenants that he, the said Poncin, was well seized in fee of the premises and had good right to sell and convey the same in manner and form aforesaid, and that he, the said Poncin, his heirs and assigns, would forever warrant and defend the said Pepin, his heirs and assigns, in the peaceable and quiet possession and enjoyment of all the said lands against any and all persons claiming, or who might claim, the same.

Pepin not long afterwards conveyed the land in fee to one French by deed of the same full, formal, and technical character as that just above described, by which Poncin had conveyed it to him, Pepin.

Soon after this, again, French made a deed of the land to one Elfelt. But the deed was not a deed like the preceding deeds; a deed with covenants, such as abovementioned, but was a deed by which French 'remised, released, and forever quit-claimed,' and by the same did 'remise, release, and forever quit-claim' to Elfelt, and 'to his heirs and assigns forever,' all his 'right, title, interest, estate, claim, and demand, both in law and equity, and as well in possession as in expectancy,' to the land now in suit. The deed was, therefore, a deed commonly known as a 'quit-claim,' with, however, the special clause above italicized.

The warrant of Pepin, under which all these conveyances had been made, having been located on land reserved by the organic act of the Territory for schools, was of course void; and on the 10th of March, 1852, the Commissioner of the General Land Office set it aside.

Notwithstanding this, however,-and after the commissioner had set the location aside-Elfelt, the grantee last abovementioned, conveyed to one Van Etten; this deed, like French's deed to Elfelt himself, being a deed of quit-claim.

Whatever title, or other thing capable of being made into a title-if anything of either-was thus vested in Van Etten, became afterwards vested by sufficient deeds in Mann.

In this state of things-these different deeds of different sorts having been made, and the location on which they all rested having been void, and been set aside-Congress came in, and in July, 1854, by 'An act authorizing a patent to be issued to Peter Poncin for certain lands therein described,' enacted:

'That the entry by Peter Poncin of. . . [the land now in question, describing it], cancelled by the Commissioner of the General Land Office, be, and the same is hereby, allowed and reinstated as of the date of said entry, so that the title to said lands may enure to the benefit of his grantees as far as he may have conveyed the same.'

The act contained a proviso, that the money paid for said lands should not have been withdrawn, or, if withdrawn, should be again paid at the land office; and enacted that thereupon a patent should issue in the name of said Pater Poncin for said lands.

After the passage of this act Elfelt executed to Van Etten a further deed, the same being a deed of quit-claim.

And subsequently to this again, Poncin having paid into the land office the price of the lands which he had attempted to locate in 1850 with his warrant already mentioned, the United States (March 24th, 1855) issued to him a patent. The patent, reciting the act of Congress, proceeded thus:

'Now know ye, that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such case made and provided, have given and granted, and by these presents do give and grant unto the said Peter Poncin, and to his heirs, the said tract above described, to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto the said Peter Poncin, and to his heirs and assigns forever.'

In this state of things French, who, it will be remembered, had received a deed with full covenants from Pepin-the said Pepin having himself previously received a similar deed from Peter Poncin-and which said French, thus, of course-if he had never made any conveyance of the land, would, on the issue of the abovementioned patent, have been invested with all Poncin's title, on the well-known common-law principle of estoppel-conceived that there was such a difference in the nature of the two deeds, with full covenants, just mentioned, which brought the title to him and the deed of simple quit-claim, which he had given to Elfelt, and which was the only deed that he had executed to pass any title out from him, that while the said doctrine of estoppel would apply to the former and vest him with the title given to Poncin, by the act of Congress and the patent, it would not apply to the latter, and therefore would not vest Elfelt or anybody claiming under him with the title of Poncin, or, in other words, with the title of him, French.

He thereupon executed a second deed of quit-claim to an entirely distinct person, one Furber.

Under Furber, and through this last-mentioned deed of French, the complainant McCarthy claimed.

Under the previous one, to Elfelt, claimed, as already said, the defendant Mann.

The court below dismissed the bill and the complainant took this appeal.

Of course neither Poncin, nor any person claiming under him, had any interest whatever in the lands until Poncin's entry of them under provision of the act of 1854, and at the date of the passage of that special act, the United States continued to have as absolute ownership as it ever had. This being so, our position is that upon the entry of the lands by Poncin, under the special act, the title immediately passed from him to Pepin, and from Pepin to French; and remained in the latter until conveyed to Furber in 1856.

At the time of the entry by Poncin, under the act of 1854, Pepin was owner of the covenant of warranty contained in his deed from Poncin, and French was owner of that contained in his deed from Pepin. Neither of such covenants ever became annexed to the land; that is to say, never ran with it; because to run with lands, that is, to pass under bare mention in the deed of the land itself, the covenants must be made by or with persons who are owners of the land, or of some estate therein. This is very ancient law; the leading case being from the Year-book of 43d Edward III, 3, cited in Spencer's Case. The existence of the same rule was affirmed in Noke v. Awder, which has usually been cited as the leading case upon the point that only covenants made with the owner of the land run with it; but erroneously, for the case from the Year-books had established the doctrine two centuries before.

Nor will this case fall within Slater v. Rawson and Baddoe v. Wadsworth, which have introduced into this country a rule not recognized by the English courts, that when the covenanter has actual possession of, though no valid title to, the lands to which the covenant relates, and acting under the deed containing such covenant, transfers actual possession to the covenantee, then the covenant will pass to a subsequent transferee of the land by the covenantee. For here any occupation of the lands in question, prior to their entry under the act of 1854, would have been in direct and inexcusable violation of law. Independently of which, possession by any one from whom either of the parties derives title, is not pretended to have existed prior to the entry of Poncin in 1854.

Neither Poncin, Pepin nor French was under any manner of obligation to Elfelt, nor to any one claiming under him, in regard to the lands, for French's deed was a mere release, operating only upon his then present interest, which was zero. It contained no averment of title, and no covenant, whereby French became bound as to the future.

What then became of the title after its passage from government?

That it went to Poncin is clear. That it did not remain in him is equally clear. In whom then did the law, by its own operation, immediately vest it?

The ordinary legal effect of the covenants of warranty which Pepin and French respectively held, cannot be open to dispute. By virtue of their operation, Poncin's estate at once enured to, and vested in, Pepin; and Pepin's estate, so received from Poncin, at once enured to, and vested in, French. This is the old common-law rule of estoppel.

But, when the title had thus arrived in French, it remained in him, from want of any relations to Elfelt upon which the law could operate to carry it to him. As has been before remarked, French was under no obligation as to Elfelt's title in the land. He had not covenanted to protect Elfelt's title, and he had not professed, in his deed to Elfelt, either to have or to transfer any interest whatever in the lands. Now no rule of law is better settled than that subsequently acquired interests are wholly unaffected by deeds of mere release without covenants, or without recitals of estate in the grantor.

Since, then, the operation of ordinary legal principles failed to carry the title any further than to French, it must have remained in him until he granted it away, by sufficient deed of conveyance; such deed he did not make till he made his deed to Furber, in 1856.

'But,' it may be asked, 'did the ordinary rules of law, in fact, govern in this case?' Certainly they did; for the statute gave no direction whatever to the passage of the title, after its arrival in Poncin. Even the clause of the statute providing that 'the entry of Peter Poncin,' be allowed and reinstated as of the date of said entry, cannot be made the basis of a contrary argument. Ordinary legal principles were left even by this clause free to accomplish their usual results, unless Congress not only meant the proposed transfer to relate back to the time of the location in 1850, but by the clause actually did make it relate back to that very time and be of the very same effect in law, for every purpose, and as between all persons, as if the location had been legally perfected at that date; in other words, unless by the clause all parties interested and the courts were estopped from saying that title did not in fact pass to Poncin in 1850.

The act did not purport to burden Poncin's title with equities or trusts in favor of any specified person. The statement that allowance of the entry is made so that the title may enure to the benefit of Poncin's grantees, does not declare a use in favor of any particular claimant of the land, in preference to any other.

The clause did not have a literal and retroactive operation. If it had, its effect would have been to clothe the patent issued under it in 1854 with the same legal consequences that would have attended one lawfully issued in 1850. Such a result could have been accomplished only,

1st. By the statute acting by way of ratifying a void act done in the name of the United States by one having no authority at the time; or,

2d. By the statute acting by way of saying that the rights of all persons should be under this patent precisely what they would have been if the attempted location had been effectual, and a patent had issued upon it.

But Congress is powerless to enact, with effect, that title to any property at the time actually vested in the United States was transferred by the latter years before; and to argue that it could, would be to propound a manifest absurdity. Congress is equally powerless to enact with effect, to-day, that a designated person may have a patent of some parcel of land in which none but government has any spark of interest, and that upon the issue to such patent to-morrow the land shall have been the property of the patentee for the four years past. Therefore the statute produced no retroactive results by virtue of its operating upon facts themselves, and changing them from what they really were.

It did not operate by way of ratifying any previous void act of Poncin and of the land officers. The act did not propose to allow or to reinstate the only thing which had actually been done. It was not designed nor permitted that the location of the land warrant should now be made, which the law had before rejected. If Poncin had, after the passage of this special statute, repossessed himself of his old land warrant, and offered to locate it upon these lands, he could not have done it. The only thing which the act did authorize, was an entirely new and original transaction, wholly unconnected with anything that had been essayed in the past. The dissent, therefore, by the United States to all that had been done by Poncin and its officers, in relation to these lands, was continued by the act, in full and unmodified force.

The act did not operate by way of making the rights of the parties, other than Poncin, what they would have been at the date of the passage of the law, if the attempted acquirement of the lands by Poncin in 1850 had been consummated at that date.

Congress was prohibited by the Constitution from granting the lands to Poncin, and then saying that the rights of the other parties should be what they would have been had the location in 1850 been effectual. For, with the covenants in full force, the title, when vested in Poncin, would instantly pass through Pepin to French; and to take it from the latter by statute, would be to deprive him of his property in a way not permitted by the rules of constitutional law.

It will be no answer to these positions to argue that the lands were government's, and that therefore it was free to grant them to whomsoever it should choose. For although the government by its statute declared that it exercised its proprietary right of disposition of the lands, so that the title vested by it in Poncin might enure to the benefit of his grantees, in so far as he might have conveyed the same, it omitted to state which of the several parties claiming to stand in that relation was the one intended. It did not even undertake to say that any part of the land had been conveyed, much less to decide whether French with his covenants, or Elfelt without any, and holding a mere release applying to no future interests, was the person to whom the title, with which it was parting, should ultimately move. Congress plainly meant that whoever should get title after Poncin, should get it by the laws of the land, and did not mean to assume the task of itself settling and adjusting the conflicting claims of those deriving title from him.

The insurmountable difficulty with the defendant's title is, that it would force a construction upon this act that would give to a mere quit-claim deed, having no covenants nor averments of title, equal efficacy with a deed having covenants, to pass subsequently acquired estates. To add to such a deed by special statute, the quality which it did not possess when made, of passing after-acquired interests, would not only be in conflict with the constitutional provisions protecting vested rights of property, but would be unjust and oppressive.

No estoppel has arisen to bar or conclude French, or any claiming under him through the Furber deed, from averring the truth. The essence of estoppel is, that the person estopped has done some act, or made some assertion, which good conscience or fair dealing would prevent him from afterward denying. If the complainant was estopped from asserting anything, it was either that Poncin had not title in 1850, or that he had not title in 1851, when he quitclaimed to Elfelt. And if such estoppel arose at all, it was upon his deed to Elfelt, because that is the only transaction between them of any consequence in determining that question. That deed, however, contained no averment of title, and no covenant, and consequently no statement capable either of being denied or affirmed. It is settled that a deed of that character works no estoppel whatever upon the grantor.

The only other act which French ever did in relation to the land, before Elfelt took his deed, was his acceptance of the deed from Pepin. But that did not conclude him from denying, even as between himself and Pepin, that Pepin had nothing at the date of the deed in the lands, although that instrument contained full covenants.

But, in addition to there having been nothing in law to estop the complainant, there was not even anything in his asserting title inconsistent with the highest degree of good conscience and fair dealing, as a mere moral question. Those who have dealt in the title here set up by the respondents have done so with all the facts upon which the appellant relies to sustain his title, spread out upon the statute-books of the United States and upon the records of the county where the lands are situated.

Mr. H. J. Horn, contra.

Mr. Justice SWAYNE recapitulated the facts of the case, and delivered the opinion of the court.

The appellant, under a remedial statute of the State, filed the bill to enforce his claim of title to the real estate in controversy. The court below decreed against him, and he thereupon brought the case to this court by appeal for review. The facts, so far as it is necessary to state them, are as follows:

The premises were a part of the public domain of the United States. On the 13th of February, 1850, Peter Poncin entered at the proper land office a tract of a hundred acres. The premises are a part of that tract.

On the 28th of March, 1850, Poncin conveyed the entire tract to Pepin, by deed of warranty. On the 19th of April, in the same year, Pepin conveyed with warranty to French. On the 19th of March, 1851, French, by deed of quit-claim, conveyed all his right, title, and claim, 'both in law and in equity, as well in possession as expectancy,' to Elfelt.

On the 10th of March, 1851, the Commissioner of the General Land Office set aside Poncin's entry, upon the ground that the section in which the land was situated was reserved by the act of March 3d, 1849, for school purposes.

On the 15th of October, 1853, Elfelt conveyed, by deed of quit-claim, to Van Etten.

On the 27th of July, 1854, an act of Congress was passed whereby the entry of Poncin was reinstated, and it was enacted that upon the payment of the purchase-money a patent should issue to him.

On the 19th of October, 1854, Elfelt executed to Van Etten a further deed of quit-claim. On the 24th of October, 1854, Van Etten, by deed of quit-claim, conveyed the undivided half of the tract to Robertson. On the 31st of the same month, Poncin paid into the land office the price of the land, and on the 24th of March, 1855, the United States issued to him a patent for it. On the 22d of July, 1855, Robertson and Van Etten laid the tract out into lots and platted them as an addition to the city of St. Paul. This addition is now worth more than half a million of dollars. The lots and blocks of lots in controversy are parts of this addition. All the deeds beforementioned were duly executed and recorded.

On the 14th of January, 1856, French conveyed, by deed of quit-claim, the entire tract to Eurber. On the 28th of June, 1856, Furber conveyed by a like deed to Dunn. On the 31st of July, 1856, Dunn executed a like deed to Hammond, and on the 20th of September, 1862, Hammond a like deed to McCarthy, the appellant. The deeds to Eurber and Dunn were duly recorded. Those to Hammond and the appellant have never been recorded.

The act of Congress under which the second entry of Poncin was made, is as follows:

'An act authorizing a patent to be issued to Peter Poncin, for certain lands therein described.

'SEC. 1. Be it enacted, That the entry by Peter Poncin of the north half of the southeast quarter and the south half of the northeast quarter of section thirty-six, in township number twenty-nine, of range twenty-three, in Stillwater land district, Minnesota, cancelled by the Commissioner of the General Land Office, be, and the same is hereby, allowed and reinstated as of the date of said entry, so that the title to said lands may enure to the benefit of his grantees as far as he may have conveyed the same; provided, that the money paid for said lands shall not have been withdrawn, or, if withdrawn, shall be again paid at said land office, and that thereupon a patent shall issue in the name of said Peter Poncin for said lands.

'SEC. 2. And be it further enacted, That the superintendent of public schools in said Territory of Minnesota, be, and he is hereby, authorized to select other lands in lieu of said section thirty-six, as far as the same have been granted or sold.' The first entry by Poncin was clearly void, and the commissioner was right in setting it aside. When the act in question was passed, the United States held the land as if no entry had been made. Being the absolute owners, they could grant it upon such terms and conditions as Congress might prescribe. The government united the powers of ownership and legislation, and both were exercised in passing the act. The act declared, first, that the entry should be reinstated as of its original date, and that a patent should issue to Poncin; second, that the title should enure to the benefit of his grantees as he should have conveyed the land. The law in explicit and there is no difficulty in carrying out its provisions. It must be liberally construed to effect the purposes of its enactment. By Poncin's grantees was meant those claiming title under him. Those to whom he might have conveyed were no more intended to be beneficiaries under the act, than those holding remoter links in the same chain of title. When he paid his money and procured a certificate of entry pursuant to the act, an equity vested in each of those who would have held it, if the original entry had been valid, and when the patent issued, the legal title vested in the same parties. The act applied the doctrine of relation. It made no distinction between grantees with warranty and those without it. If there had been outstanding title-bonds, they also would have been within the equity of the act, and the holders could have enforced them accordingly. The law and equity of the case are with the appellees, and the decree of the Circuit Court is

AFFIRMED.

title: McCarthy v. Mann/Opinion of the Court


text: Talk:McCarthy v. Mann/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Zantzingers v. Gunton

APPEAL from the Supreme Court of the District of Columbia; the case as assumed by this court on the evidence being thus:

In the year 1844, the charter of the Bank of Washington, in the city of that name, being about to expire, and its affairs to pass into the hands of William Gunton, its late president, and certain other persons as trustees, to wind them up to the best advantage, and the bank having a debt of some amount due to it from Daniel Carroll, for which it had a lien on several lots in Washington already previously incumbered, Gunton, in behalf of the bank, requested a certain William Fisher there, with whom he was on terms of much intimacy, to become the purchaser, as agent of the bank, of the lots; Gunton promising to save him from any loss. Fisher consented to become the purchaser in the way mentioned. The bank accordingly furnished the requisite funds, about $6065.84, to Fisher, who gave his note therefor, and he bought the lots, a conveyance of them being made to him. Subsequently to this, the charter of the bank having now expired, Fisher and wife made a conveyance of them by deed to Gunton. This conveyance was declared to be in trust to secure the payment of the note of William Fisher for $6065.84 at sixty days, payable to his own order; and it authorized a sale of the property for that purpose, and directed the trustee to pay the balance, if there should be any, as the grantor might by further instrument in writing direct. Fisher afterwards did by a formal instrument, under seal, direct that after the sale of all the lots, and the payment of the note and interest and the costs of the trusts, including compensation to the trustee, any remainder should be paid to the trustees of the bank.

In this state of things, certain persons of the name of Zantzinger, related to Fisher, and who had become through the dispositions of his will owners of all real estate which he left at his death, filed a bill against Gunton setting forth that Fisher had given a note for $6065.84 to the bank, and had conveyed these lots to Gunton, the president of its trustees, to secure it; that Gunton had never settled any account, and that they had no knowledge whether the note had been paid or what disposition had been made of the lots conveyed as security; and praying an account, &c.

The bill made no kind of reference to the instrument of appointment abovementioned as having been executed by Fisher, by which he directed that after the sale of the lots and payment of the note, &c., any remainder should be paid to the trustees of the bank.

The answer set up as defence the history of the matter as above given, and especially that Fisher had by formal instrument of appointment, produced, directed that any surplus left after paying his note should be paid to the trustees.

Proof was taken, including testimony of Gunton himself, which if believed established, of itself, the defence. The court below dismissed the bill, and from that, its action, the complainants took this appeal.

Messrs. F. Miller, R. T. Merrick, and T. J. Durant, for the appellant, referred to certain acts of Congress, arguing from them that the bank had no power to hold real estate except for certain specified purposes, for which they did not hold these lots, and that the trustees had no power to take and hold it at all.

Messrs. J. D. McPherson and W. D. Davidge, contra, were relieved by the court.

Mr. Justice MILLER delivered the opinion of the court.

title: Zantzingers v. Gunton


text: Talk:Zantzingers v. Gunton

title: Talk:Zantzingers v. Gunton


text:
Zantzingers v. Gunton/Opinion of the Court

The complainants in their bill, omitting any statement of the formal instrument of appointment made by Fisher, and treating the deed of trust as a mere security for his note, allege that there is a balance in the hands of the trustee, Gunton, to which they are entitled, and call upon him for an account.

The answer of the defendant, which is fully sustained by the proof, sets up two defences, either of which is in our opinion sufficient:

1. It sets up and relies upon the instrument which appointed and directed that he should pay any balance remaining of the proceeds of the sale of the lots, after satisfying the note, to the trustees of the Bank of Washington.

As these instruments are all under seal and by the common law imply on their face a good consideration, they show that the grantor had parted with all his interest in the property. The legal title was in the trustee, and the equitable interest in the trustees of the bank. His direction to the trustee to sell, and his subsequent direction to pay the proceeds to these trustees, carried all the interest he ever held. Of course, no interest in these lots or in the proceeds of their sale passed either by his will or by inheritance to the complainants.

2. But the answer and the evidence further show very fully that William Fisher only held the legal title as naked trustee without interest, for the use of the trustees of the Bank of Washington. About the period of the expiration of the charter of that institution, it became necessary, in order to secure payment of a debt due to it from Daniel Carroll, to have the lots in question, on which they had a lien, placed in a situation where the money could be realized. The lots were accordingly purchased by Fisher, at the request of the trustees of the bank, who furnished the money, and the note and trust deed to Gunton (who was one of the trustees of the bank) were devices by which the lots were divested of other liens and placed in the hands of Gunton, so that on sales to be made, at convenient times and fair prices, the proceeds in the shape of money could be paid to the trustees who had the management of the bank. Fisher never paid any money, nor was it intended that he should. His note was placed in the bank, and was by it protected and cancelled in due time. It was on his part a mere act of friendship to accept the trust and confidence reposed in him by the trustees of the bank, and he carried out faithfully the requirements of that trust. The efforts of the present complainants to take advantage of this confidence, and to assert an interest which he never thought of claiming, do not commend themselves to a court of equity, and the technical rules of the law on which they are based should be very clearly in their favor to enable them to succeed. We are of opinion they have no place here.

It is said that neither the bank, whose charter had expired, nor the trustees who were authorized to wind up its affairs, could purchase or hold real estate.

As a general propositions this may be true. And if the transaction here was in its effect to vest in the bank the real estate in question, either by its legal title or the absolute equitable ownership and control of it, the question presented and argued by counsel would arise if complainants were in position to raise it. But it is very clear that no such effect can be given to the transaction we are considering. The bank had a debt due to it and a lien on this property. The right of the bank, or its liquidating trustees, to have this property so sold as to pay this debt is undoubted. If in doing this they were compelled, for their own protection, to buy off other incumbrances, so that when sold and converted into money all of it should be paid to them, no principle of law or justice was violated. Neither the bank nor the trustees of the bank ever had the legal title, or the power of sale, or the right to control the time or the terms of the sale. If Gunton, the trustee, had failed or refused to sell, or died without a sale, no power lay in the trustees of the bank to make a sale or to receive the title. Their only remedy would have been to assert their right to a sale and to the proceeds of it in a court of chancery.

It cannot be said, then, that the trustees of the bank ever had the legal title, the control, or the ownership of the land, and their only interest was a right to the proceeds when the lots should be sold under the deed of trust. This was not in our opinion forbidden by any law of the District, statutory or otherwise. Nor do we think it worth any consideration that Fisher's note was given in the transaction. He incurred no risk; he acquired no real interest in the property and claimed none; and if he ever had a technical legal interest he parted with it when he gave the deed of trust and the subsequent authority to pay the proceeds of the sale to the trustees of the bank.

DECREE AFFIRMED.


text: Talk:Zantzingers v. Gunton/Opinion of the Court


text:
Bulkley v. United States

APPEAL from the Court of Claims, in which court H. S. Bulkley filed a petition against the United States to recover damages on a contract for the transportation of army supplies in the West, by which, as he alleged, the government, after having given him notice that it would furnish to him certain supplies for transportation, and not having furnished them (he having made his preparations to transport them), became bound to pay to him the profits which he would have made had the supplies been so furnished and transported.

The Court of Claims decreed against the claim, and he took this appeal.

Messrs. Durant and Horner, for the appellant; Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice SWAYNE stated the case and delivered the opinion of the court.

title: Bulkley v. United States


text: Talk:Bulkley v. United States

title: Talk:Bulkley v. United States


text:
Bulkley v. United States/Opinion of the Court

The result of the case here depends upon the construction to be given to the fourth article of the contract between the parties.

Bulkley agreed to transport any quantity of such supplies between 100,000 and 10,000,000 pounds-that might be turned over to him for that purpose, from April to September, 1865. The fourth article provided—

'That in order that the said H. S. Bulkley shall be in readiness to meet the demands that shall be made upon him for transportation under this contract and agreement, due notice shall be given him or his agent of the quantity and kind of stores to be transported at any one time, at what points the stores will be ready for delivery to him, and the place of their destination, subject to such changes as shall be decided upon while in transitu, as herein provided for, that is to say,' &c.

The period of the notice before the time of performance in each case was then prescribed, being twenty-five days for 300,000 pounds, and increasing according to the increased quantity of the stores specified. On the 4th of June, 1865, an officer of the government advised Bulkley that transportation from Fort Leavenworth to the extent of 1,700,000 pounds was needed, and inquired whether, as he had been notified already to the extent of his contract, he was prepared to transport that additional quantity of freight. He assented. This enlarged so far the maximum quantity covered by the contract.

The Court of Claims found, that of the freights notified under the fourth article, the United States did not need transportation for 1,690,074 pounds, and to that extent, therefore, did not offer any to him. It was further found that Bulkley, on his part, was prepared and ready to transport all such freights, and so notified the proper officers of the United States. The court held as a conclusion of law that he could not recover the profits he would have made had the freights withheld been furnished to him, but that the United States having thrown upon him needless expense by requiring him to make ready for the transportation of freights which they did not in the end require to be transported, he was entitled to recover for the expense to which he was thus subjected. Bulkley, insisting upon profits as the measure of his damages, declined to furnish proof of the expense incurred. The Court of Claims thereupon dismissed his petition, and he has removed the case to this court for review. Here the claim for profits, as the rule of compensation, is renewed.

It is insisted that every notice was a specific agreement within the original contract on on part of the government that the freights specified should be furnished, and that the United States are liable accordingly.

We think this theory cannot be maintained, and that the Court of Claims came to the right conclusion.

Outside of the fourth article there is nothing in the contract which gives the slightest support to the claim. The other stipulations are that Bulkley should transport in the manner provided, and within the times mentioned, all the freights between the maximum and minimum quantities specified that should be offered to him. If none had been offered he would certainly have had no claim upon the government for anything. The fourth article provides that in order that he might be in readiness to meet the demands of the government, due notice should be given him of the time, place, quantity, and kind of stores to be transported and their place of destination. There is still no agreement to furnish such freights, or any freights. The effect of the notice was to signify a purpose on the part of the government, and that purpose was liable to be changed at any time before it was executed. Indeed, it is expressly stipulated that it might be altered while the stores were in transitu, and there is no limit prescribed as to the extent or character of the changes that might be made. If, the day after the transportation commenced, the wagons had been ordered back to their place of departure, unloaded, and the transportation abandoned, there would have been no breach of the contract. The change would have been within its letter and meaning. A multo fortiori might such a change be made and carried out before the transportation began. If it were intended that after the notices were given the government should be bound as claimed, that intent should have been expressed in the contract. It is neither expressed nor implied. It was doubtless known to the officer who entered into the contract on behalf of the United States, that in the exigencies of the public service, more or less transportation, or none, might be required at any given time or place contrary to what had been anticipated and intended down to the last moment. Hence while it was stipulated that actual transportation should be paid for at the rates specified, an unfettered discretion was reserved to the government as to everything beyond that point. It is to be presumed that with this view the contract was framed as we find it. It commits the government to nothing but to pay for service rendered. It is partly printed and partly written, and is according to the formula used by the government in all such cases. In making ready to meet the requirements of the notices, Bulkley was subjected to the loss of time, to trouble, and expense. He is entitled to be paid accordingly. Such is the implication of the contract, and what is implied in a contract, deed, will, or statute is as effectual as what is expressed. Human affairs are largely conducted upon the principle of implications.

In relation to the large amount of stores transported there is no complaint. It is to be presumed that everything in relation to them has been satisfactorily adjusted. This claim is confined to stores not transported.

Although we concur entirely with the Court of Claims in their view of the case, yet as the appellant acted in that court upon a mistaken notion of his rights, the judgment will be reversed and the cause remanded that he may have another opportunity to produce the proof which he before declined to give. If he shall again refuse, the petition must be finally dismissed.

CAUSE REMANDED.


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


text: The Wenona

title: The Wenona


text: Talk:The Wenona

title: Talk:The Wenona


text:
The Wenona/Opinion of the Court

APPEAL from the Circuit Court for the Northern District of New York.

About nine o'clock in the evening of the 29th of November, 1869, heading east by north half north, the steam propeller Wenona was on her course down Lake Erie; her rate about ten miles an hour. The evening was somewhat dark and it was raining. There was a little mist on the water, but not enough to make what is called a fog. The wind was south, or south by east.

Going up the lake at the same hour, then, and for a half hour before, heading southwest by west half west, was the schooner Fr emont; her rate five or six miles an hour, all her canvas set, closehauled, though making some leeway.

Both vessels were well officered and had their proper lights properly stationed.

The vessels as they approached saw each other. The steamer saw that the vessel coming up was a sailing vessel, and the schooner before long saw that the vessel coming down was a steamer. The schooner kept on her course till a certain moment, when she changed her course. The steamer kept on her course till a certain moment, when she changed hers also. A collision took place, and the schooner with her cargo went to the bottom of the lake; her officers and crew having barely time to escape with their lives.

Her owner hereupon libelled the steamer in the admiralty. The question in the case was a pure question of fact. Did the steamer change her course, as she was bound by the rules of navigation to do, in time to enable the schooner safely to keep on hers? Did the schooner, when she changed her course, change it because the vessels had got so near that a collision seemed inevitable if she did not do so?

The question, of course, was to be decided by the evidence.

The LOOKOUT, on duty at the time, was examined; a man who had been a sailor for fifteen years, eleven of them on the ocean, and the rest upon the lake. He said:

'I was forward on the vessel. Our course was southwest by west half west. I saw the propeller's light; at first a bright light, right ahead. I reported it to the officer of the deck. He answered, and said 'I see it.' A minute or two afterwards I saw green and red lights; and I reported to the mate that there was a steamer ahead. The mate lit the torch and made a flash light. It was lit twice. It was a turpentine torch, and made a flash for two or three seconds. I watched the lights on the steamer; they appeared to me dead ahead, and seemed, if anything, to be gaining a little to the windward, until they opened out to our port bow, which was our weather bow. I could then see the red and bright light but not the green. The next thing I could see was that her green light shut in for a short time; and I saw the red and bright light but not the green. Then both green and red opened out brightly, and the vessel seemed to be coming down on us; and to be not more than three times her own length from us, perhaps not that. I called the men below, to come on deck and to look out for themselves. In four or five minutes from the time I saw the bright light as near as I can give it-it might have been more or less-it could not have been many minutes more-the steamer struck us between stem and cathead; at an angle of something more than forty-five degrees. She was under way and came stem on.'

The MATE, whose business for twenty-eight or twenty-nine years had been sailing, said:

'The captain came on deck as the second torch was lit; whether he or the cook lit it I can't say; one or the other. The propeller was then pointed right to us. The schooner's course had not been changed. Her course was south west by west half west. I know that from the compass, and I am swearing from what I know of the compass course. She had been on that course since a little after eight o'clock. She kept on that course till the time the captain came on deck. When the propeller was standing right over us the captain gave order to the man at the wheel to 'hard aport."

The WHEELSMAN, who had been for three years on the ocean, for ten upon the lakes, and for the last-mentioned term in the habit of steering, said:

'After the lookout reported a light, I saw the light of the propeller; a bright masthead light. Our course-southwest by west half west-was taken before we saw that light. After I saw the three lights the propeller put off suddenly to the windward three or four points or more. It took her five seconds to go off to windward; I could not tell the time; it was sudden. I first saw her dead ahead, and then to windward. She shot to windward. When the vessels came together our course might have been west by south half south. The captain sang out, 'Put the helm hard up,' and the change was made. The propeller was then off our port bow, heading about midships for us, and our vessel was then perhaps half her own length from her. If I had not put the helm hard up, the propeller would have struck us at the fore-rigging. I put the helm hard aport. No other change was made in the course of our vessel from the time the white light was reported down to the collision.

'I saw the bright light about eight minutes before the collision. The propeller must have then been a mile and a half from us. When I first saw her three lights I judge she might have been a quarter of a mile from us. She got three or four points off our port bow or more. This was not many minutes before the collision. It may have been two.'

The MASTER, who was also the owner of the vessel, and had been sailing on the lakes for twenty years, said:

'I was in may cabin reading a newspaper. I heard through the windows the lookout report, 'Light ahead.' The mate said, 'Steady. Don't let her fall off.' The mate then said to me, 'Light this torch,' handing it to me. I dropped my paper and lit it. In about a minute I heard another report in the cabin, 'It's a steamer; she is coming right for us.' The torchlight would only burn two or three seconds. The mate asked me to light the torch again. I said, 'I have no time; the cook will do it.' I jumped on deck and got on the cabin top. I watched the lights for a few seconds. When I first saw them they were about half a mile off, probably less. I watched till the lights got pretty close to and the green light almost shut in. At this time I could see the port side of the hull, a kind of glance of it. The boat seemed to come in that style till within about four times her length of us, and then she straightened up and came towards us. I asked the man at the wheel how our vessel was heading. He said she was on her course. The propeller seemed to starboard her wheel suddenly, when she was perhaps one hundred feet or more from us. I then ordered our wheel hard aport, hard up. The propeller struck us. The collision took place in two or three minutes after I got on deck; I can't tell well about the time. It was not more than five or six minutes after the first report of 'Light ahead."

The cook, who was also steward, one Clements, gave his account of what part of things fell under his observation, as follows:

'At the time of the collision I was on deck. Before that I had been below. I heard the lookout report light ahead. The mate answered, 'All right,' or something to that effect. Then I heard the mate report to the captain that the light did not appear to alter its course. The mate was standing on deck looking down in the cabin. Then the captain got up and looked out of the companion-way, and told the mate to light the torchlight. I got the matches to light the torch, and gave them to the captain. He lit the torch. Then the mate swung it under the leeside of the boom. Then, while he was swinging the light I looked up the scuttle to see if I could see the propeller-light myself. I did see a bright light. It was right ahead; might be half a point on the weather bow. Then I heard the captain say, 'Light the torchlight again,' and I went to the cabin and gave some matches again to the captain and he lit the torch. The mate showed the torch lighted at the same place as before. Then I went to look up through my scuttle again, and I could make out the whole three lights of the propeller bearing right down upon us. I could then just begin to see the hull loom up. In hazy weather like that, I cannot give any estimate of distance. I see the captain then jump atop of the house and hail the propeller. He sung out two or three times, but what words he said I cannot say. Then the vessels came together.'

There was no lack of testimony on the other side.

It tended to show, and some of it positively enough, that the first light which the steamer saw on the schooner was the torchlight, dead ahead, or, if anything, a quarter or half point on her port bow; that this light was seen eight or ten minutes before the collision; that in a short time afterwards the green light of the schooner was seen, dead ahead, or, if anything, on the propeller's starboard bow; this, of course, indicating that the schooner was passing to the starboard, so that the vessels would pass starboard to starboard-'green to green;' that the second torchlight was then seen, and still the green light alone, opening on the propeller's starboard bow, from dead ahead to one or two points on that bow. So that whatever might be thought about 'leeway,' there was still no danger, nor appearance of danger; that after the green light had been thus opened until it was about a point and a half or two points on the propeller's starboard bow the green light suddenly became invisible, and the red one shot in sight a minute or two before the collision, and appearing about one and a half or two points off the propeller's starboard bow, appearing as soon as the green one became invisible; that the schooner was estimated by those on the propeller to be then from an eighth to a half of a mile on the propeller's starboard bow; that they conceived that this indicated that the schooner had changed her course and was crossing the propeller's bow; that the propeller then put her wheel hard astarboard, stopped and backed her engine.

All this part of the case was made out by the statements of witnesses who, as to exact times and distances, were in opposition to the witnesses of the other side, and were in certain particulars not absolutely consistent with each other.

So at least the District Court thought, and it therefore decreed for the libellants, condemning the Wenona for the loss of the schooner and her cargo.

The Circuit Court, on a more favorable view of the evidence of the respondent, reversed that decree, and the owners of the schooner brought the case here to re-establish, if they could, the decree of the District Court.

There was no denial that the propeller was well officered, with a good watch, &c., &c.,; the chief allegation being that they had wholly mistaken distances, and so committed fault.

The mate and wheelsman testify positively that the schooner did keep her course until the propeller was coming on her, and was only a short distance off, when her wheel was put hard aport under the captain's order, to ease the anticipated blow. The respondent offers no evidence of a positive character in opposition to this affirmative testimony. His evidence conveys opinions rather than facts, in opposition to the positive evidence on the part of the libellant. That kind of evidence cannot weigh against positive proof.

The burden is on the propeller to show that it did everything in its power to keep out of the way of the schooner. This it had a right to do, as it was in the open lake, by either porting or starboarding its wheel, or by slackening its speed, or by stopping and reversing its engine, if there was risk of a collision. If a steamer makes the light of a sailing vessel at a sufficient distance to avoid coming in contact with the vessel, and a collision ensues, prin a facie the steamer is chargeable with fault, and the steamer must exculpate itself by clear and satisfactory evidence, or she will be helf liable.

If the approach of the vessel is such 'as to involve the risk of a collision,' and such risk is ascertained, then the measures 'to keep out of the way' are to be taken. If doubt exists in the case of a steamer as to the proper course to be taken when nearing a sailing vessel, arising from difficulty in determining the course of the sailing vessel, then the steamer should 'slacken her speed, or, if necessary, stop and reverse.'

The evidence on the part of the libellant shows great care, caution, and attention. The mate and captain of the schooner, seeing that the propeller was steering directly for the schooner, so as to involve risk of a collision, ordered a torch lighted to attract the attention of the propeller and warn it of the danger. The first light from the torch did not apparently attract the attention of the propeller, for it continued to bear for the schooner. A second flash-light from the torch was made. The man at the wheel was cautioned at the same time to keep the schooner steady on her course. He testifies that he did so. This shows that the persons in command of the schooner were on the alert, and taking unusual pains to warn the propeller of the danger.

There is not any dispute as to the fact that the propeller starboarded its helm, but the libellant's and respondent's winesses differ considerably as to the then relative position of the two vessels, and as to the distance there was then between them.

The libellant's witnesses testify that when the second torchlight went out the vessels were very near each other. It was at this time the libellant himself stepped on top of the cabin. The vessels were then, as the libellant testifies, from one-quarter to half a mile apart.

The respondent's testimony would go to show that the propeller made the red light of the schooner after the second torchlight went out, and that when it made the red light the vessels were apart not less than a quarter of a mile, and that some little time elapsed between the disappearance of the second torchlight and the appearance of the red light of the schooner.

It is evidence that the distance between the two vessels when the propeller put her helm hard astarboard and swung to port was about as the libellant's witnesses state, and not so great as that given by the respondent's witnesses.

It is obvious that there was haste in the manoeuvre of the propeller, and that before it was made the vessels were in a dangerous proximity. The blame rests with the propeller for getting the vessels into that position, and it must be held liable.

It is evidence that the propeller's headway was not materially checked when the vessels collided, and that the propeller was going ahead.

So far as the decision of this court as an appellate tribunnal is concerned, it will, on the disputed evidence, give great weight to the decision of the District judge, who had the advantage of seeing the witnesses as they testified and could form a good judgment of their probity and intelligence.

To commit a fault is to violate some statute, some rule, some custom, and not merely to err.

The propeller violated no law, rule, or custom. She conducted herself with ordinary care, skill, and judgment, under the then circumstances, and with reference to appearances which should then have guided her.

That she was well officered, that her watch was perfect, her master, second mate, wheelsman, lookout, and engineer at their places, is not denied. That they were each and all competent is not questioned. That they saw the schooner about one and a half or two miles off is shown. That they continued vigilantly to watch the schooner, doing nothing else from that time to the collision, each devoting himself to the performance of his duty, is not to be doubted. Is it to be determined that such abundantly competent men, properly placed, altogether vigilant, occupying places for the proper exercise of judgment infinitely better than any other, are in fault; and that the damages for such a loss as this should fall upon the propeller, when fault, as will be shown, was committed by the other vessel?

Seeing the green light dead ahead, as it is plain that the propeller did see it, and no other light, what was the rule? 'Starboard the helm.' Seeing the green light on the starboard bow, what again was the rule? 'Starboard the helm.'

'Green to green, or red to red, Perfect safety. Go ahead.'

Why, during the time that the green light continued to be seen, should the propeller have done any more than continue to open it on her starboard bow?

When the light of this schooner could be and was seen about two miles (the statutory distance at which they should be visible) there was no fault to be found with the speed of the propeller. There was every opportunity for avoiding a collision necessary in such a case. When vesseles are seen that distance apart the absence of a lookout even is not considered a fault.

Without fault down to the time the green light continued to be solely visible off the propeller's starboard bow, the propeller cannot be in fault at all, unless she afterwards committed it; and committed it when, having thus seen the green light opening on her starboard bow, she had a right to conclude that the vessels were going clear of each other.

The propeller had kept swinging steadily to port. She did not put her wheel aport. Down to the period of the propeller's progress so far considered not one indication of danger. At this time, and when the green light had opened until it was about one point and a half or two points on the propeller's starboard bow, the green light suddenly became invisible and the red was seen. Estimates of time and distance, in collision cases, are of course uncertain, but this red light is estimated by those on board the propeller to have been visible a minute or two before the collision. The red light first appeared about one and a half or two points off the propeller's starboard bow, appearing as soon as the green light became invisible. The schooner was estimated by those on the propeller to be then from an eighth to half a mile off, on the propeller's starboard bow, and, as has been seen, from one and a half to two points off the starboard bow. The schooner was seen running in a direction to cross the propeller's course, with her sails full, well before the wind. When this red light was seen thus alone on the starboard bow, it at once indicated that the schooner had changed her course and was crossing the bows of the propeller. The propeller was then swinging to port under her starboard wheel. The schooner had suddenly changed her course, but was still off the starboard of the propeller. What should the propeller do in this sudden emergency, this sudden change from safety to peril, produced by the fault of the schooner? Precisely what she did do: put her wheel hard astarboard, and, as was done, stop and back her engine. Should the propeller then have put her wheel aport, when she was swinging to port at the time, when she would have had to overcome that swing before her port wheel would be felt?

Suppose the propeller, under the circumstances of sudden peril produced by the fault of the schooner, then committed an error (which she did not do), yet she was not responsible under familiar rule.

The conduct of the propeller was faultless, upon authority. A steam vessel is required to take no precautions when there is no apparent danger.

The schooner was in fault; she caused the collision. The proof given by the propeller as to the opening of the schooner's green light, and the suddenly exhibited red, shows that the wheelsman of the schooner must have changed her course before her master gave the order to put her wheel hard up. It may have been done without his knowledge. It may have been done without the knowledge of any one except the wheelsman. It is true the wheelsman asserts he did not do it, as is always the case in collision causes. But both he and the captain, and others on the schooner, swear to things absolutely, which could not have existed had not this change taken place.

Mr. Justice CLIFFORD delivered the opinion of the court.

Sailing vessels, when approaching a steamer, are required to keep their course, and steamers, under such circumstances, are required to keep out of the way. Vessels propelled by sails are required to keep their course on account of the correlative duty imposed upon the steamer to keep out of the way, in order that the steamer may know the position of the object to be avoided and may not be led into error in her endeavor to comply with the requirement. Under the rule that the steamer must keep out of the way she must of necessity determine for herself, independently of the sailing vessel, whether it is safer to go to the right or to the left or to stop, and in order that she may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the attempt to perform her duty in the emergency, it is required by the rules of navigation that the sailing vessel shall keep her course and allow the steamer to pass either on the right or left, or to adopt such measures of precaution as she may deem best suited to enable her to perform her duty and fulfil the requirement of the law to keep out of the way. Rules of navigation, such as have been mentioned, are obligatory upon such vessels, when approaching each other, from the time the necessity for precaution begins, and they continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain. They do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary to avoid a collision.

Injuries of a serious character were received by the schooner Fr emont, owned by the libellant, on the twenty-ninth of November, 1869, in a collision which occurred on Lake Erie, about nine o'clock in the evening of that day, between the schooner and the propeller Wenona, in consequence of which the schooner sunk in the middle of the lake, and, with her cargo of salt, became a total loss. Damages were awarded to the libellant, as the owner of the schooner, by the decree of the District Court, in the sum of thirteen thousand nine hundred and seventy-nine dollars and fifty-two cents, and costs of suit, from which decree the respondents appealed to the Circuit Court, where the parties were again heard, and the Circuit Court reversed the decree of the District Court and entered a decree dismissing the libel, holding that the collision occurred solely through the fault of the schooner. Whereupon the libellant appealed to this court.

Briefly stated, the facts of the case, as they appear to the court here, were substantially as follows: Bound on a voyage from the port of Oswego to the port of Sandusky, the schooner, just before the collision, was proceeding up the lake, heading southwest by west half west, and moving about five or six miles an hour. On the other hand, it appears that the propeller was bound on a voyage from Chicago to Buffalo, and was proceeding down the lake ten miles an hour, heading east by north half north. They were, therefore, sailing in nearly opposite directions, there being only a single point of variance, and the leeway which the schooner was making, as appears by the evidence, made the lines of their actual progress more nearly parallel. None of these facts are much disputed, and it is quite certain that the wind was south or south by east, and that the schooner, though making some leeway, was nearly closehauled. It was raining, and the night was somewhat dark, but the witnesses agree that there was no fog and not much mist on the water. Both vessels were seaworthy and well manned, and the evidence furnishes no reason to doubt that they both had good and sufficient lookouts porperly stationed. Both vessels also showed signal lights, but it is insisted by the respondents that the signal lights of the schooner were not properly located on the vessel. Much discussion upon that subject, however, is unnecessary, as it clearly appears that the lights were burning brightly, and that they were seen by the propeller in ample season to have enabled her to adopt any and every proper precaution to have avoided a collision.

Two faults are ascribed to the schooner by the respondents, as follows: (1.) That she did not have good signal lights properly displayed, as required by law. (2.) That she changed her course, in violation of the fifteenth rule of navigation for preventing collisions on the water.

1. Enough has already been remarked to show that the first defence is not supported, without further discussion, and it is accordingly overruled.

2. More difficulty arises in disposing of the second, as there is considerable conflict in the testimony upon that subject, which, doubtless, led to the difference of opinion between the District and Circuit Courts. Where there is no material conflict in the testimony of the witnesses, it is seldom difficult to decide such a controversy, as the rules of navigation are very plain and may be readily applied without much danger of mistake.

Errors committed at the moment of collision are to be regarded with less strictness than those committed when the vessels are more distant from each other, as such an error is often superinduced by an error of the other vessel committed at an earlier moment. In such a case much depends upon time and distance, as all experience shows that measures of precaution, in order to be effectual, must be seasonable, and it is well-settled law that if they are not so and a collision ensues in consequence of the delay, it is no valid defence on the part of the delinquent vessel to aver that nothing could be done at the moment to prevent the disaster. Inability to prevent a collision usually exists at the time it occurs, and in order to determine where the fault lies it usually becomes necessary to examine with care the conduct and orders of those in charge of the respective vessels from the time the vessels came in sight of each other to the time they came together, and such an examination frequently discloses the fact that the cause of the collision is to be found in some negligence or mismanagement of one or both vessels when they were at some distance from the theatre of the actual collision. Difference of opinion as to the true state of the facts doubtless led to the contrariety of decision in the lower courts, and it is the same difference of opinion between the parties which makes each claim with confidence the favorable decision of this court. All agree that it was the duty of the propeller to adopt the necessary precautions to keep out of the way, and the respondents insist that they complied with that requirement, but the libellant denies that proposition and contends that they did not adopt any precautionary measure for that purpose in season to render it effectual. Perfect concurrence of views is also entertained by the parties that it was the duty of the schooner to keep her course, but the respondents contend that the schooner violated that requirement, and that the charge made in argument against the propeller, that she did not adopt proper and seasonable precautions, is not supported by the evidence. Evidently, therefore, the decision of the court must turn upon the view taken of the evidence. Such being the state of the case the court has looked carefully into the evidence and is of the opinion, after a deliberate consideration of the same, that the theory of fact assumed by the libellant is correct.

Proper signal lights were displayed by the schooner, and in addition to that requirement it appears that the mate, when the two vessels were a mile and a half apart, exhibited a torchlight. Report was first made to him by the lookout that he, the lookout, saw a bright light ahead, but presently he saw both a red and green light, and thereupon reported to the mate that there was a steamer ahead, and he testifies that the mate immediately lighted the torch. He states that he watched the approaching lights and that they appeared to be nearly ahead, gaining a little to the windward, until they opened out 'to our port bow,' which was their weather bow; and continuing the narrative he says that the next thing that he saw was the propeller seemed to be coming down on to the schooner, when he called to the men below to come on deck and look out for themselves. He went on duty at eight o'clock, and he states that just after that, the schooner was put upon a course of southwest by west half west, that she had been on that course a half hour or more before the collision, and that she was kept on that course to the time it was changed by the master, which was after the master came on deck, just before the propeller struck the schooner. No one could have better means of knowledge than the lookout enjoyed, as he was on the deck when the propeller was first discovered and continued there until the collision occurred, and he testifies in the most positive terms that he knows what the compass course of the schooner was, and that it was not changed before the order was given by the master, as before stated, and that he heard the order when it was given by the master to the wheelsman to make that change.

Equally positive testimony to the same effect is given by the man at the wheel, who testifies that no change was made in the helm of the schooner from the time she was put upon the course of southwest by west half west until the master sung out, put the helm up, when the schooner was not more than half her length from the propeller, that the propeller at that time was off the port bow of the schooner heading about midships of the latter vessel; and he adds, with emphasis, that 'no other change was made in the course of our vessel from the time the white light was reported down to the collision.'

Until just prior to the collision the master was in the cabin, which was on deck, but he heard the report of the lookout to the mate that there was a light ahead, and heard the order of the mate to the man at the wheel to keep the vessel steady and not to let her fall off. He lighted the first torch for the mate, but when he heard the lookout say it is a steamer coming right towards the schooner, he, the master, jumped on deck and got on the cabin roof, where he could see the approaching lights about a half point on the weather bow and probably one-fourth of a mile distant. Inquiry was made by him of the man at the wheel how the schooner was heading, and he replied that she was on her course, and the master testifies that at one time as he stood on the cabin watching the lights of the propeller he caught a glance of the port side of her hull, and he states that she seemed to advance in that way until she came within about a hundred feet of the schooner, when she suddenly changed her course, and that when he saw that change he gave the order to the wheelsman to put the helm hard up. Such a change cannot be regarded as a culpable act, as it is clear that the collision was then inevitable, and it is highly probable that if it had not been given the destruction of the schooner would have been so sudden as to have prevented the master and crew from escaping from the wreck.

Clements, the cook and steward, was also examined, and his testimony accords in all substantial respects with the other witnesses called by the libellant.

Witnesses, it is true, were examined by the respondents, whose accounts of the circumstances preceding the collision differ in many respects from the statements made by the witnesses of the libellant, but their testimony is not of a character to warrant the court to impute wilful false-swearing to the witnesses who were on the deck of the schooner, and the court is of the opinion that it is scarcely possible to adopt the theory of the respondents without coming to the conclusion that the libellant's witnesses have committed wilful perjury.

Several theories are suggested which it is argued show that it is highly improbable that the collision would have occurred if the schooner had kept her course, as the libellant insists she did, but it is clear that the schooner was sunk by a blow from the propeller, and in the opinion of the court the evidence to show that the schooner did keep her course until the collision was inevitable is too strong to be overcome by any or all of the theories suggested in argument by the respondents. Most of the theories suggested by the respondents as tending to show that the schooner did not keep her course, as assumed by the libellant, are based upon the estimates of time and distance made by the witnesses who were on board the propeller, which, in the judgment of the court, are far too liberal and quite unreliable; as, if admitted to their full extent, they would show that the collision could not have occurred. Doubtless the helm of the propeller was put to starboard when the first torchlight was displayed on the schooner, but it is highly probable that the two vessels were much nearer together than is supposed by the witnesses, as it is evident if they were two miles apart at that time and much change was made in her wheel, that the collision would have been avoided unless a counterchange was made in the wheel before the distance between the two vessels was overcome. Carefully examined, it will be seen that the testimony of the respondents does not show that the schooner changed her course but once after her signal-lights were first seen, and that change is admitted by the witnesses of the libellant. But they differ widely in one respect from the respondent's witnesses, as the latter assume that the collision would have been avoided if that change of course had not been made, whereas the libellant's witnesses testify to the effect that it was not made until the collision was inevitable, and the court is of the opinion that the latter theory is satisfactorily proved. Inferences from circumstantial facts may frequently amount to full proof of a given theory, and may even be strong enough to overcome the force and effect of direct testimony to the contrary, but the circumstances invoked in argument by the respondents in this case are not sufficiently persuasive and convincing to justify the court in adopting a conclusion directly opposed to the positive testimony of all the witnesses who were on the deck of the schooner just before and at the time the disaster occurred. Beyond doubt they must know what the circumstances were, and the record furnishes no sufficient reason to warrant the court in imputing to them wilful falsehood.

DECREE OF THE CIRCUIT COURT REVERSED, and the cause remanded with directions to

AFFIRM THE DECREE OF THE DISTRICT COURT.

title: The Wenona/Opinion of the Court


text: Talk:The Wenona/Opinion of the Court

title: Talk:The Wenona/Opinion of the Court


text:
Knowles v. Gaslight and Coke Company

ERROR to the Circuit Court for the District of Minnesota.

The Logansport Gaslight and Coke Company brought an action in the court below, against Alfred Knowles, on a judgment recovered by it against the said Knowles and one Thomas Harvey, in the Circuit Court for Cass County, Indiana. The defence to the action now brought was that that court did not have jurisdiction of the person of the defendant. The record of the former judgment was produced on the trial and was somewhat anomalous. Three defendants were sued in the Cass County Court-a certain J. W. Bain, Knowles, and Harvey-none of whom resided in Indiana. Bain was served with process in New York, and after a long struggle to get the proceedings dismissed as to himself, removed the cause into the Circuit Court of the United States, under the act of 1866, and obtained a judgment in his favor. The cause was then remanded to the Cass County Court, and judgment by default was rendered against Knowles and Harvey. In some respects the proceedings seemed to have been conducted as a suit on attachment, the property of the defendants (who resided in Minnesota) being attached, and other creditors being allowed to come in to participate in the proceeds. Nevertheless the record of the proceedings contained, amongst other things, the copy of a summons in the case, issued to the sheriff of Cass County, against all the defendants, and a return thereto in the following words:

'I do hereby certify that I served the within writ, on the 14th day of September, 1865, upon Alfred Knowles and Thomas Harvey, personally, by reading the same to them. And I further certify that J. W. Bain cannot be found in my bailiwick.'The return was signed by the sheriff's deputy. This was all that appeared in the record on the subject of service of process on Knowles and Harvey, or in reference to their appearance or non-appearance to the action. The defendant, on the trial of the present action, contended that the return of the sheriff was insufficient to charge him personally in the former action, inasmuch as it did not show that service had been made in the proper county, or where it was made; and, being overruled on this point, he offered to prove by himself and Harvey that neither of them had in fact been served with process, and that the return was false; the purpose of this proof being to show that the Cass County Court, which rendered the judgment on which this action was brought, never had jurisdiction of the person of either. The court below (the case of Thompson v. Whitman, in this court, not having then been adjudged) excluded the testimony, on the ground that the record could not be contradicted in a collateral proceeding.

The case was brought here on a bill of exceptions.

Mr. R. H. Bigelow, for the plaintiff, relied—

As to the first point, on Allen v. Blunt, ruled in the circuit by the late Mr. Justice Nelson; and,

As to the second, on Christmas v. Russell, and Cheever v. Wilson, adjudged in this court.

Mr. F. R. E. Cornell, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Knowles v. Gaslight and Coke Company


text: Talk:Knowles v. Gaslight and Coke Company


text:
Knowles v. Gaslight and Coke Company/Opinion of the Court

Upon the first point, that the return was insufficient, the plaintiff in error relies on a decision of Mr. Justice Nelson at the circuit, in the case of Allen v. Blunt, in which it is supposed to have been held that a return of service by the United States marshal, without showing that the service was made in his district, was insufficient to give the court jurisdiction of the person. What Justice Nelson held in that case was this: that inasmuch as the eleventh section of the Judiciary Act declares that 'no suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ;' therefore, the jurisdiction of said courts depends on service or inhabitancy in the district, one of which should appear of record; and inasmuch as the record in that case contained no allegation on the subject, and the jurisdiction of the court depended entirely on the marshal's return to the process, the return was insufficient to give it. This authority, therefore, is not in point. The case was in the United States court, and depended upon the peculiar phraseology of the act of Congress referred to therein; whereas the case in Cass County, now under consideration, was in a State court; and it is familiar law that a court of general jurisdiction will be presumed to have had jurisdiction of the cause and the parties until the contrary appears. In our judgment, therefore, the return, on its face, shows no ground of error. It will be presumed that the service was made in the proper county.

But the defendant also offered to prove by himself and Harvey that neither of them had ever in fact been served with process, and that, in consequence, the court had never, as to them, acquired jurisdiction of the person.

As this subject has been lately considered by us in the case of Thompson v. Whitman, it is unnecessary to go over the subject again. In our opinion the defendant had a right to show by proof that he had never been served with process, and that the Circuit Court of Cass County never acquired jurisdiction of his person. As this was refused him on the ground that the evidence was inadmissible, the judgment must be reversed. We do not mean to say that personal service is in all cases necessary to enable a court to acquire jurisdiction of the person. Where the defendant resides in the State in which the proceedings are had, service at his residence, and perhaps other modes of constructive service, may be authorized by the laws of the State. But in the case of non-residents, like that under consideration, personal service cannot be dispensed with unless the defendant voluntarily appears.

VENIRE DE NOVO AWARDED.


text: Talk:Knowles v. Gaslight and Coke Company/Opinion of the Court


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Railroad Company v. Church

ERROR to the Supreme Court of the District of Columbia.

The trustees of the Sixth Presbyterian Church, in the city of Washington, instituted proceedings before the marshal and a jury of the District of Columbia against the Baltimore and Potomac Railroad Company, to recover from it damages which the church had sustained by reason of the road of the company having been run through a street in front of their church. The jury assessed the damages at $11,500, and on the return of this inquest into the Supreme Court of the District of Columbia, the inquisition was confirmed, and a judgment rendered that the trustees of the church recover of the railroad company that sum, with costs. The company having brought the case to this court on writ of error, a motion was now made by the trustees of the church to dismiss it for want of jurisdiction in this court.

This want of jurisdiction was based on two propositions:1. That the proceeding is in its nature summary and special, and is of that character in which the action of the court confirming or quashing the verdict of the jury is conclusive, and admits of no appeal.

2. That the proceeding in this case is governed, both before the jury and in the Supreme Court of the District, by a statute of Maryland, which, by the uniform construction of the courts of that State, does not allow an appeal or writ of error to any other court.

Messrs. J. A. Garfield and R. D. Mussey, in support of the motion; Messrs. D. Clarke and S. T. Phillips, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Railroad Company v. Church


text: Talk:Railroad Company v. Church

title: Talk:Railroad Company v. Church


text:
Railroad Company v. Church/Opinion of the Court

It is certainly true that the proceeding is of the character asserted in the propositions on which the want of jurisdiction is based, and that, as a general rule, no appeal or writ of error lies in this class of cases.

But the appellate jurisdiction of this court over the doings of the Supreme Court of the District is established and regulated by act of Congress, and a reference to the statutes on this subject is necessary to the decision of the question before us. The act which created the Supreme Court of the District of Columbia vested in it the same powers and jurisdiction that had previously belonged to the Circuit Court, which it superseded, and the appellate power of this court was declared to be the same as that which it had, by law, over the Circuit Court. The act of February 27th, 1801, organizing the Circuit Court, declares that any final judgment, order, or decree in said Circuit Court, where the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be re-examined and reversed or affirmed in the Supreme Court of the United States by writ of error or appeal, and though the sum limiting this jurisdiction has been increased to $1000, this statute remains the sole rule governing the right of appeal in all other respects.

We are of opinion that both the questions raised by the motion to dismiss have been explicitly decided by this court.

In the case of Custiss v. Turnpike Company, an assessment for land taken for the use of the company was quashed by the Circuit Court, and a writ of error was sued out by Custiss from this court. A motion was made to dismiss this writ on the same ground taken in the present case, namely, want of jurisdiction; to which Marshall, C. J., replied, that 'at the opening of the case some doubt was entertained as to the jurisdiction of the Supreme Court; but that doubt is removed by an inspection of the act by which the Circuit Court of the District of Columbia is constituted. The words of that act, descriptive of the appellate jurisdiction of this court, are more ample than those employed in the judicial act.' He then quotes them as we have given them above.

So in the case of Young v. The Bank of Alexandria, the court uses this emphatic language in regard to the same statute: 'The words of the act of Congress, being as explicit as language can furnish, must comprehend every case not completely excepted from them.'

It is to be observed also that in this latter case the rights of the bank and the jurisdiction of the court over it were said in argument to be controlled by an act of the legislature of Virginia. But the court held that whatever might be the extent to which that statute affected the rights of the parties, the appellate jurisdiction of the Supreme Court depended solely on the act already quoted.

But perhaps the most conclusive case in this branch of the discussion, namely, the proposition that the statute of Maryland governs the right of appeal in the present case, because by the act of Congress it is adopted as the mode of proceeding in assessing damages and in defining the power of the Supreme Court of the District in the matter, is that of Carter's Heirs v. Cutting. That was a case in which an order of the Orphans' Court of Alexandria County, being affirmed in the Circuit Court, an appeal was taken to this court, and a motion was made to dismiss that appeal. This motion was based upon the twelfth section of the same act of February 27th, 1801, by which it was declared that the Circuit Court, in appeals from the Orphans' Court, shall therein have all the power of the chancellor of the State of Maryland; and by the laws of Maryland the decree of the chancellor in such case was final.

It will be observed that the analogy between that case and the present is perfect. But the court said in that case that the conclusiveness of the sentence formed no part of the essence of the powers of the court. Its powers to act are as ample, independent of their final quality, as with it. And referring to the language so often cited already, they say: 'We cannot admit that construction to be a sound one which seeks by remote inferences to withdraw a case from the general provisions of a statute which is clearly within its words and perfectly consistent with its intent.'

We do not feel at liberty to disregard these contemporaneous expositions of an act of Congress which has furnished the criterion of our jurisdiction ever since the courts of the District were established, and they are so directly in point that we cannot dismiss the writ without overruling them. The motion is, therefore,

DENIED.


text: Talk:Railroad Company v. Church/Opinion of the Court


text:
Cooper Executor v. Omohundro

ERROR to the Circuit Court for the Eastern District of Virginia; in which court Littleton Omohundro, a citizen of Ohio, sued Richard Cooper, a citizen of Virginia, executor of Silas Omohundro (which said Silas was in his lifetime a citizen of the same State), to recover certain advances which the plaintiff, the said Littleton, who was the son of the said Silas, the defendant's testator, had made (as the evidence tended to show, though this fact was not in any way shown by the pleadings), during the rebellion, and while funds could not be transmitted from Virginia to Ohio for the said Silas, his father.

The said Silas, the decedent, though living in Virginia, had been building a house in Ohio, for his wife (or reputed wife) and children, who resided there, and where he was in the habit of visiting them till the rebellion broke out. He died in 1864.

The court gave judgment for the plaintiff, and the defendant brought the case here on error.

Messrs. J. M. Carlisle and J. M. Lyons, for the plaintiff in error; Mr. J. M. Crump, contra.

Mr. Justice CLIFFORD stated the case, and delivered the opinion of the court.

title: Cooper Executor v. Omohundro


text: Talk:Cooper Executor v. Omohundro

title: Talk:Cooper Executor v. Omohundro


text:
Cooper Executor v. Omohundro/Opinion of the Court

Advances were made by the plaintiff to Silas Omohundro in the sum of $4390, as alleged in the bill of particulars filed in the case. None of that amount, as the plaintiff alleges, was ever paid by the decedent, and the defendant, as his executor, having neglected and refused to pay the same, the plaintiff brought an action of assumpsit against the defendant, as such executor, to recover the amount. Service being made the defendant ultimately appeared and pleaded the general issue. Both parties being present they waived a jury, and agreed that the issues of fact should be tried and determined by the court without the intervention of a jury.

Subsequently the defendant filed a special plea, that the plaintiff ought not to have and maintain his action aforesaid against him because, he says, that at the time of making the supposed contract and promise in the declaration mentioned, war existed between the United States and the Confederate States, and that the plaintiff and the testator of the defendant were alien enemies, concluding with a verification and a prayer for judgment. Responsive to that special plea the plaintiff filed a replication denying the allegations thereof, and prayed that the same might be inquired of by the country.

Three depositions were introduced by the plaintiff to sustain the issue on his part, and he also introduced certain receipts, four of which were signed by the reputed wife of the decedent, and two by the contractor employed to build a dwelling-house for his reputed wife and children. Taken together, these proofs tend strongly to prove that the decedent was indebted to the plaintiff in the sum of $4390, as found by the Circuit Court.

Countervailing evidence was introduced by the defendant consisting of five depositions, a deed from the decedent to his reputed wife for her life, remainder to her six children, and the will of the testator with the probate thereof, the Virginia orginance of secession, and an ordinance of the State requiring the governor to call volunteers into the service of the State to repel invasion and to protect the citizens of the State in the emergency, and ten other ordinances passed by that State during the rebellion. All of the testimony introduced on the one side and the other being set forth at large in what is denominated in the transcript a bill of exceptions, filling thirty-seven pages of the transcript.

None of the evidence introduced by the plaintiff was objected to at the time, nor is any part of it made the subject of an exception, nor was any request made by the defendant at the close of the plaintiff's case for a ruling adverse to the right of the plaintiff to recover. On the contrary, the defendant immediately proceeded to introduce evidence responsive to that introduced by the plaintiff, and evidence to show that the decedent never promised the plaintiff as alleged in the declaration, and at the close of his evidence requested the Circuit Court to decide substantially as follows:

1st. That the alleged contract, inasmuch as war existed at the time between the United States and the Confederate States, was illegal and void.

2d. That the alleged contract, if not actually void, was an executory agreement, and as such was terminated by the war.

3d. That the alleged contract, if otherwise valid, was too indefinite to be executed.

4th. That no interest is recoverable during the war or any portion of the war upon a contract between alien enemies.

5th. That upon the whole case, judgment should be for the defendant.

But the court refused so to decide, and ruled against the defendant upon each of the propositions, and the defendant excepted to the said ruling.

Under those circumstances the record states that 'the court does find the facts in the case for the plaintiff, and gives judgment that the plaintiff recover of the defendant the sum of $4391, with interest from the 24th day of June, 1864, at the rate of six per cent. per annum, and costs of suit.'

Judgment having been rendered, the defendant moved the court to arrest the same and grant him a new trial, alleging for cause that the judgment was contrary to the evidence and the law, and in support of the motion assigned for error the same causes as those stated in the requests submitted before judgment, but the court overruled the motion and the defendant excepted to the ruling.

Such is the state of the record which is brought here by the defendant in the subordinate court. Since the cause was removed here the losing party assigns a single cause of error, which is that the Circuit Court erred in refusing to rule in favor of the defendant upon the questions of law as requested, and in ruling to the contrary thereof.

Much discussion of the motion for new trial is unnecessary, as the motion is one addressed to the discretion of the court, in respect to which the ruling of the Circuit Court cannot be reviewed here upon a writ of error, nor in any other mode. Nor can it make any difference in this case that the motion for new trial was blended with one to arrest the judgment, as such a motion ought regularly to be made before the judgment is entered. Notions in arrest at common law were made after verdict and before judgment, and it is quite clear that the refusal to grant such a motion after judgment, in case where the finding of the Circuit Court is general, cannot be regarded as a ruling made in the progress of the trial.

Nothing remains to be considered except the requests for rulings presented by the defendant before judgment.

Beyond all doubt the only effect of the exception to the refusal of the court to grant the fifth request, if the exception is admitted to be well taken, will be to require the court here to review the finding of the Circuit Court in a case where the finding is general, and where it is unaccompanied by any authorized statement of the facts, which it is plain this court cannot do, for the reasons given in the opinion of the court in the case of Insurance Company v. Folsom, decided at the present term. Our decision in that case was, that in a case where issues of fact are submitted to the Circuit Court and the finding is general, nothing is open to review by the losing party under a writ of error except the rulings of the Circuit Court in the progress of the trial, and that the phrase 'rulings of the court in the progress of the trial' does not include the general finding of the Circuit Court nor the conclusions of the Circuit Court embodied in such general finding, which certainly disposes of the exceptions to the refusals of the Circuit Court to decide and rule as requested in the first four prayers presented by the defendant, as it is clear that those exceptions seek to review certain conclusions of the Circuit Court which are necessarily embodied in the general finding of the Circuit Court.

Opposed to that it may be suggested that the judgment shows that interest is allowed, but the answer to that is that neither the finding nor the judgment shows anything in regard to the principal except the amount awarded to the plaintiff. Nothing can be inferred from the declaration to support the defence of illegality, as it contains only the money counts, nor from the bill of particulars filed in the case, as it gives only the dates of the payments and makes no reference to the date of the contract. Support to the defence is entirely wanting without resorting to the evidence as reported in the bill of exceptions, which includes all that was introduced on both sides and is unaccompanied by any special finding of the facts. Issues of fact cannot be found by this court, as the act of Congress requires that such issues shall be found by the Circuit Court. Consequently there can be no review of the finding of the Circuit Court where the finding is general, nor of the conclusions of the Circuit Court embodied in the general finding.

JUDGMENT AFFIRMED.


text: Talk:Cooper Executor v. Omohundro/Opinion of the Court


text:
Crews v. Brewer

ERROR to the Circuit Court for the Northern District of Illinois.

Mr. Albert Pike, for the plaintiff in error; Mr. Gustavus Koerner, contra.

Mr. Justice CLIFFORD stated the case and delivered the opinion of the court.

title: Crews v. Brewer


text: Talk:Crews v. Brewer

title: Talk:Crews v. Brewer