text:
Lawler v. Claflin

THIS was an appeal from the Supreme Court of the Territory of Minnesota.

The action was commeneed in the District Court, second district, county of Ramsey, by Claflin and the other defendants in error, against Lawler and thirty-two other persons, who were claimants under Lawler.

The statutes of Minnesota abolished the distinction between the forms of action at law, and declared that there should be in the Territory but one form of action at law, to be called a civil action, for the enforcement and protection of private rights and the redress of private wrongs, except as otherwise expressly provided by statute. The only pleadings allowed on the part of the plaintiff were: 1, the complaint; 2, the reply or demurrer; and on the part of the defendant, the demurrer and answer. All equity and chancery jurisdiction, authorized by the original act of the Territory, shall be exercised, and all suits or proceedings to be instituted for that purpose are to be commenced, prosecuted, and conducted to a final decision and judgment, by the like process, pleadings, trial, and proceedings, as in civil actions, and shall be called civil actions.

Under this mode of practice, Claflin and the other defendants in error, who were merchants of the city of New York, filed a complaint against Lawler, as mortgagor, to foreclose a mortgage given by him to them, upon property in St. Paul. The complaint claimed that the premises might be sold according to law.

It is not necessary to follow the proceedings under this new mode of practice. Suffice it to say that Lawler answered, and the plaintiffs replied. A jury trial was waived in open court by the attorneys for the plaintiffs and defendants, and the cause was tried before the judge. The defendants then moved to dismiss the action for certain reasons, but the motion was overruled. They then offered depositions which were objected to, but allowed to be read for certain purposes; after which, the plaintiffs offered some depositions which were objected to, but allowed to be read. Other evidence was offered by the plaintiffs, which was objected to, but received; upon which state of the case, the judge decreed that Lawler executed the note and mortgage, and was indebted to the plaintiffs in the amount claimed.

No bill of exception was taken during the progress of the trial, but the whole case went up to the Supreme Court of the Territory. That court made the following remarks in the course of its opinion:

'A jury trial was waived, and the cause was tried by the court.

'The court rendered a judgment of foreclosure in favor of the plaintiffs, and made the usual order directing a sale of the mortgaged premises.

'From the judgment, an appeal has been taken to this court.

'The paper books furnished to the court contain not only the judgment roll, including properly the decision of the court below, but also the evidence in the case. The cause has been argued as though the evidence was properly before this court; but this is a mistake.

'In this case, it is true that the evidence consisted wholly, or nearly so, of depositions; but there is no more propriety in sending up written than oral testimony, and we have no right to look beyond the record in the case.

'The record consists of the pleadings, the decision of the judge, and the judgment. The question, then, is, does the record show any error of law?

'No error has been assigned, and none appears in the record, unless it appears in the decision of the court below.

'The decision is something more than a general verdict. Perhaps any error disclosed by the decision, although such decision may contain more matter than is required by the statute, may be noticed. The true course, I apprehend, however, is for the party to take his exceptions to every ruling, in the same manner as in a jury trial, unless such ruling will form a legitimate part of the decision, or the error, if any exist, will appear in the pleadings.'

It was stated in the outset of this report that the case was brought up to this court by appeal, and not by writ of error.

It was argued by Mr. Stevens, upon a brief filed by himself, and Mr. Brisbane, for the appellant, and by Mr. Gillet for the appellees.

The counsel for the appellant founded his argument upon the theory that the whole case was before this court, evidence and all; whilst Mr. Gillet contended that the decision of the court, where a jury trial was waived, was conclusive as to all questions of fact, and that the absence of a bill of exceptions precluded all inquiry into questions of law, where the case should have been brought up by writ of error, and not by appeal.

Mr. Justice McLEAN delivered the opinion of the court.

title: Lawler v. Claflin


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1443

 A 1392 SEVENTIETH CONGRESS. SESS. II. C$. 367. 1929. lie Lands-clerk, $2,360 ; assistant clerk, $1,520 ; janitor, $1,010. Revision of the Laws-clerk, $3,000 ; ja nit or, $ 1,0 10. R ive rs and Harbors-clerk, $2,880 ; assistant clerk, $2,150 ; janitor, $1,310. Roads-clerk, $2,360 ; janitor, $1,010. Rules-clerk, $2,880 ; assist- ant clerk, $1,830 ; janitor, $1,010. Territories-clerk, $2,360 ; jani- tor $1,010. War Claims-clerk, $2,880 ; assistant clerk, $1,520 ; jani- tor, $1,010. Ways and Means-clerk, $4,200 ; assistant clerk and stenographer, $2,360 ; assistant clerk, $2,250 ; clerk for the minority, $2,880 ; janitors-one $1,310, one $1,010. World War Veterans' Legislation-clerk, $2,880 ; assistant clerk, $2,150 ; in all, $250,230. Clerks subject to Clerk of the House at Appropriations in the foregoing paragraph shall not be available end of the congress. for the payment of any clerk or assistant clerk to a committee who does not, after the termination of the Congress during which he was appointed, perform his duties under the direction of the Clerk of the ommittee on Ac- House : Provided, That the foregoing shall not apply to the Com- counts excepted. mittee on Accounts. Appointment, etc. Janitors under the foregoing shall be appointed by the chairmen, res pectiv ely, o f said commi ttees, and s hall pe rform under the di rec- tio n of t he Doo rkeepe r all of the dutie s heret ofore requir ed of mes- sengers detailed to said committees by the Doorkeeper, and shall be subject to removal by the Doorkeeper at any time after the termination of the Congress during which they were appointed. Office of Sergeant at OFr ICE OF SERGEANT AT ARMS Arms. Ser geant at Ar ms, Salar ies : Sergeant at Arms, $6,500 ; Deputy Sergeant at Arms, Depu ty, cas hier, etc. $2,880 ; cashier, $4,500 ;; two bookkeepers, at S3,000 each ;; Deputy Ser- ean t at A rms in charg e of p airs, S2,500 ; pair clerk and m esseng er, 2,500 ; messenger, $2,500 ; stenographer and typewriter, $600 ; skilled laborer, $1,140 ; hire for automobiles, $600 ; in all, $29,720. Building . House Office For poli ce fo rce, Hous e Off ice B uildi ng, under the Serg eant at Arms : Lieutenant, $1,520 ; nineteen privates, at $1,360 each ; in all, $27,360. Doorkeeper's office. OFFICE OF DOORKEEPER Doorkeeper, special Salaries : Doorkeeper, $5,000 ; special employee, $2,500 ; superin- employee, etc. tendent of House press gallery, $3,300 ; assistant to the superinten- Messengers. dent of the House press gallery, $2,240 ; janitor, $2,400 ; messengers- seventeen at $1,500 each, fourteen on soldiers' roll at $1,520 each ; laborers-seventeen at $1,010 each, two known as cloakroom men at $1,140 each, eight known as cloakroom men, one at $1,010, and seven at $890 each ; three female attendants in ladies' retiring rooms, at Folding room. $1,440 each ; attendant for the ladies' reception room, $1,200 ; super- Superintendent, etc. intendent of folding room, $2,880 ; foreman of folding room, $2,340 ; chief clerk to superintendent of folding room, $2,150 ; three clerks, at $1,940 each ; janitor, $1,010 ; laborer, $1,010 ; thirty-one folders, at $1,200 each ; shipping clerk, $1,520 ; two drivers, at $1,140 each ; Pages. two chief pages, at $1740 each ;; two telephone pages, at $1,440 each ; two floor managers of telephones (one for the minority), at $2,880 each ; two assistant floor managers in charge of telephones (one for the minority), at $1,830 each ; forty-one pages, during the session, including ten pages for duty at the entrances to the Hall of the House, at $3 .30 per day each, $28,683 .60 ; press-gallery page, $1,700 ; Document room. superintendent of document room, Elmer A. Lewis, $3,500 ; assistant Superintendent, etc. superintendent of document room, $2,460, and $420 additional while the position is held by the present incumbent ; clerk, $2,040 ; assistant clerk, $1,940 ; eight assistants, at $1,600 each ; janitor, $1,220 ; mes- senger to press room, $1,310 ; maintenance and repair of folding- room motor truck, $500 ; in all, $222,993 .60.

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text: Talk:Lawler v. Claflin

title: Talk:Lawler v. Claflin


text:
Lawler v. Claflin/Opinion of the Court

This is an appeal from the Supreme Court of the Territory of Minnesota.

The suit was brought on a mortgage executed the first day of October, 1852, by Ann Curran, the duly-authorized attorney in fact of William B. Lawler, conditioned for the payment of the sum of four thousand dollars, being part of lot three, in block thirty, in the town of St. Paul, forming an oblong square, forty-two feet on Third street by eighty feet on Roberts street. This mortgage was duly recorded on the day subsequent to that of its execution.

This mortgage, it was alleged, was executed to secure a sum of money then due to the plaintiffs, and which was likely to become due, in the further purchase of merchandise from the plaintiffs by the defendant. The plaintiffs accepted the mortgage, as security for purchases to be made, or any debts which the firm of Curran & Lawler might subsequently owe the firm.

The understanding and agreement between the parties was, that the mortgage was to be held by plaintiffs as a pledge or collateral security, and was not to be cancelled or delivered up until all purchases which Curran & Lawler might make, and which might become due at any time within the year-that is, before the first of October, 1853. So long as anything should remain due on such purchases, the indebtment was to be considered and deemed secured by the mortgage.

The payment of the note and mortgage, as alleged by Curran & Lawler in their answer, is denied; and it is stated that the amount of indebtment on the note and mortgage, at maturity, was upwards of five thousand dollars.

It is difficult to determine the character of the loose papers certified from the Supreme Court of Minnesota to this court. They have neither the form nor the substance of a record. The papers seem to be thrown together, as much by accident as design; and one can scarcely gather any special object in reading the transcripts. It would seem that neither certainty nor order can be extracted from these papers, and that some form should be adopted by which the pleadings should be stated, and the points controverted, whether of fact or of law. Many objections are made to questions propounded to witnesses, but no exceptions seem to have been taken.

A jury seems to have been waived, and the facts were submitted to the court. In such a case, the question of law arising on the facts would appear to have been decided by the court. Still, no exception is taken. In fact, there seems to be nothing for this court to try, except the validity of the mortgage and the fact of its discharge. And, even in this matter, the evidence is in conflict, and it is difficult to decide the point disputed.

The mortgage was for four thousand dollars, and was to stand as a security for the balance due the plaintiffs; and in this way it was intended to give an additional credit to the company. From the manner in which the mortgage was treated, it appears to have been designed as a standing guaranty for the sum named.

And, in the language of the court, the said 'action having come on to be heard at the May term of the District Court of Ramsey county, upon the complaint of the plaintiffs and the answer of the said William B. Lawler, before the presiding judge of said court, a jury trial therein having been waived by the respective parties, the same having been decided in favor of the plaintiffs, and that there is due on the notes and mortgage upon which the action is brought the sum of four thousand four hundred and ninety-five dollars and forty cents, with interest from the 4th October, 1853, amounting in all to $5,084.07; and, on motion, it was ordered, adjudged, and decreed, that the mortgaged premises, or so much thereof as may be necessary, be sold by the sheriff for the payment of the mortgage; and it is further ordered, adjudged, and decreed, that the defendants, and all persons claiming under them, be forever barred,' & c.

On the appeal of Lawler and others from the District Court of Ramsey county to the Supreme Court of the Territory, 'the matters at issue in this cause having been fully considered, it appears to this court that, in the proceedings, decree, and judgment thereon, in the District Court of Ramsey county, to this court appealed from, there is no error. It is therefore ordered that said decree and judgment be in all things affirmed, with costs,' &c.

From this last decree there is an appeal now pending before this court.

In looking into the facts of this case, it does not appear that the merits are changed by the views taken by the District Court of Ramsey county, or by the decision of the Supreme Court of the Territory.

The evidence is against the discharge of the mortgage. After the amount claimed under the mortgage, there is still a balance due the plaintiffs on general account.

Upon the whole, the decree of the Supreme Court of the Territory is affirmed; and the cause is remitted to the Supreme Court of the State of Minnesota, to be carried into effect as the law authorizes.

title: Lawler v. Claflin/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1444

 SEVENTIETH C ONGRESS. SESS. II. CH. 367. 1929 . 1393 SPECIAL AND MINORITY EMPLOYEES For six minority employees at $2,500 each, authorized and named in the resolution of December 5, 1927, $15,000. To continue employment of the assistant foreman of the folding Special employees. room, autho rized in the resol ution of Sept ember 30, 19 13, $1 ,737 .4 0. To continue employment of the person named in the resolution of April 28, 1914, as a laborer, $1,140. To continue employment of the laborer authorized and named in the resolution of December 19, 1901, $1,140. Clerk, under the direction of the Clerk of the House, named in the resolution of February 13, 1923, $2,740. Successors to any of the employees provided for in the five pre- ceding paragraphs may be named by the House of Representatives at any time. Office of majority floor leader : Legislative clerk, $3,600 ; clerk, $2,880 ; assistant clerk, $1,830 ; janitor, $1,310 ; in all, $9,620. Conference minority : Clerk, $2,880 ; assistant clerk, $1,830 ; janitor, $1,310 ; in all $6,020. The foregoing employees to be appointed by the minority leader. To continue the employment of messengers in the majority and minority caucus rooms, to be appointed by the majority and minority whips, respectively, at $1,520 each ; in all, $3,040. POST OPPIC E Salaries : Postmaster, $4,200 ; assistant postmaster, $2,570 ; registry and money-order clerk, $1,830 ; thirty-four messengers (including one to superintend transportation of mails), at $1,520 each ; for the employment of substitute messengers, and extra services of regular employees at the rate of not to exceed $125 per month each, $1,000 ; laborer, $1,010 ; in all, $62,290. For the purchase, exchange, maintenance, an d repair of motor vehicles for carrying the mails, $3,400. OFFICIAL REPORTERS OF DEBATES Salaries : Six official reporters of the proceedings and debates of the House, at $7,500 each ; assistant (John J . Cameron), $3,000 ; clerk, $2,750 ; six expert transcribers, at $1,520 each ; janitor, $1,220 ; in all, $61,090. CO MMIIL EE ST ENOGR APHER S Salaries : Four stenographers to committees, at $6,500 each ; jani- tor, $1,220 ; in all, $27,220. Wherever the words "during the session" occur in the foregoing paragraphs they shall be construed to mean the two hundred and twel ve day s from Decem ber 1, 1929, to Jun e 30, 1930, both i nclusi ve. Special and minority emplo yees. Minority employees. Appointment of suc- cess ors. Majority floor leader. Conference minority. Cauc us stingers. Post offi ce. Postmaster, assistant, etc. rooms mes- Mail vehicles. Off icial repo rters. Stenographers to committees "During the session" to mean 212 days. CLE RK HI RE, MEMBERS AND DELEGATES For cl erk hi re nec essari ly emp loyed by each Membe r, Del egate, and bes Cle rk, etc .hire of Mem. Resident Commissioner, in the discharge of his official and repre- sentative duties, in accordance with the Act entitled "An Act to fix the compen sation of of ficers and e mployee s of t he Leg islati ve Bra nch of the Government," approved May 24, 1924 (U. S . C ., p. 6, sets . 74, u. S. Code, p.6. 92), $1,760, 000. Vol. 43, p. 152.

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text: Talk:Lawler v. Claflin/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1445

 1394 Contingent expenses. Folding materials. Furniture, etc. Packing boxes. Miscellaneous items. Committee reporting. Special and select com mittees. Telephone and tele- graph service. Stationery. Postage stamps. Speaker's automo- bile. Folding speeches, etc . Clerical assistance to the Clerk of the House . Specified objects . Recording, etc ., po- litical statements. Vol.43,p. 1071. U. S. Code, p.15. Capitol police. Pay. Contingent expenses. Uniforms, etc. Division of disburse- ments. Joint Committee on Printing. Clerk, etc. Vol. 28, p. 603. U. S. Code, p.14. Congressional Direc- tory . SEVENTIETH C ONGRESS. SEss. II. CH. 367. 1929 . CONTINGENT EXPENSES OF THE HOUSE For materials for folding, $9,000. For furniture and materials for repairs of the same, including not to exceed $20,000 for labor, tools, and machinery for furniture repair shops, $40,000. For packing boxes, $4,500. For m iscellaneous items, exclusi ve of salarie s and labor u nless specifically ordered by the House of Representatives, and including reimbursement to the offici al stenographe rs to committ ees for the amounts actually and necessarily paid out by them for transcribing hearings, $75,000. For stenographic reports of hearings of committees other than special and select committees, $25,000. For e xpenses of sp ecial and sele ct committees authorized b y the House, $40,000. For telegraph and telephone service, exclusive of personal services, $90,000. For stationery for Representatives, Delegates, and Resident Com- missioners, including $5,000 for stationery for the use of the committees and officers of the House, $60,000. For postage stamps : Postmaster, $250 ; Clerk, $450 ; Sergeant at Arms, $300 ; Doorkeeper, $150 ; in all, $1,150. For driving, maintenance, repair, and operation of an automobile for the Speaker, $4,000. For folding speeches and pamphlets, at a rate not exceeding $1 per thousand, $8 ,0 00. For assistance rendered during the calendar years 1928 and 1929 in compiling list of reports to be made to Congress by public officials compiling copy and revising proofs for the House portion of the Official Register ; preparing and indexing the statistical reports of the Clerk of the House ; compiling the telephone and Members' directories ; preparing and indexing the daily Calendars of Business ; pre paring the of ficial statem ent of Members ' voting reco rds ; p r e - par ing list of c ongressional nominees, and statistical s ummary of elections ; preparing and indexing questions of order printed in the appendix to the Journal pursuant to House Rule III ; a n d f o r recording and filing statements of political committees and candi- dates for election to the House of Representatives pursuant to the Federal Corrupt Practices Act, 1925 (U . S . C ., pp. 15-17, sets . 241- 256), $5,000. CA PITOL POLIC E Salaries : Captain, $2,150 ; three lieutenants, at $1,520 each ; two special officers, at $1,520 each ; three sergeants, at $1,410 each ; forty- four privates, at $1,360 each ; one-half of said privates to be selected by the Sergeant at Arms of the Senate and one-half by the Sergeant at Arms of the House ; in all, $73,820. For contingent expenses, $200. For purchasing and supplying uniforms and motor cycles to Ca n tol police, $3,750. e-h alf of the fo regoing amoun ts under "Capi tol police" s hall be disbursed by the Secretary of the Senate and one-half by the Clerk of the H ouse. JOINT COMMITTEE ON PRINTING For clerk, $4,000 ; inspector, under section 20 of the Act approved January 12, 1895 (U. S. C., pp. 14-18, see. 49), $2,490; assistant clerk and stenographer, $2,100 ; for expenses of compiling, preparing, and indexing t he Congressio nal Directory, $1,600 ; i n al l, $1 0 ,1 90 ,

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1446

 SEVENTIETH CONGRESS. SESS. II. CH. 367. 1929. one half to be disbursed by the Secretary of the Senate and the other half to be disbursed by the Clerk of the House. OFF ICE OF L EGIS LATIV E COU NSEL For salaries and expenses of maintenance of the office of Legis- lative Counsel, as authorized by law, $75,000, of which $37,500 shall be disbursed by the Secretary of the Senate and $37,500 by the Clerk of the House of Representatives. STATEMENT OF APPRO PRIATI ONS For preparation, under the direction of the Committees on Appro- priations of the Senate and House of Representatives of the state- ments for the second session of the Seventieth Congress, showing appropriations made, indefinite appropriations, and contracts author- ized, together with a chronological history of the regular appropria- tion bills, as required by law, $4,000, to be pai d to the persons d esig- nated by the chairmen of said committees to do the work. ARCHITECT OF THE CAPITOL Oi t 1CE OF Ttl. ARCHITECT OF THE CAPITOL Salaries : Architect of the Capitol, $7,500 ; chief clerk, $3,150 ; civil engineer, $2,770 ; clerk, $2,040 ; two clerks, at $1,840 each ; com- pensation to disbursing clerk, $1,000 ; laborers-one at $1,104, two at $1,010 each, two at $950 each ; forewoman of charwomen, $760 ; twenty-two charwomen, at $412 .80 each ; in all, $35,005 .60. For forty-eight elevator conductors, including fourteen for the Senate Office Building and fourteen for the House Office Building, at $1 ,520 each, $72,960. 1395 Off ice of Le gisl ative Counsel. Salaries, etc. Statement of appro- priations. Preparing, secon d session Seventieth Congress . Vol.25,p. 587. Architect of the Capi. tol . Arc hitec t, c hief clerk , etc . Elevato r conductors. Capitol buildings CAPITOL BUILDINGS AND GROUNDS and grounds. Capitol Buildings : For necessary expenditures for the Capitol buildin gs, etc pa 's to Buil ding u nder t he jur isdict ion of the Ar chitec t of t he Cap itol, in- clu ding mino r imp rovem ents, mai ntena nce, repa ir, e quipm ent, sup- plies, material, and appurtenances ; personal and other services ; cle aning and repa iring wor ks of art ; pu rcha se or exch ange, mai n- tenance, and driving of motor-propelled passenger-carrying office vehicles ; and not exceeding $300 for the purchase of technical and necessary reference books, periodicals and city directory, $79,432 .60. Ventilation of the Senate Chamber : The unexpended balance of tilSenate Chamber ven- the appropriation " Senate and House ventilation, 1928 and 1929," is conti nued and made avai lable duri ng t he fi scal year 1930, and in addition thereto the sum of $3,725, to be available for the same purposes and under the same conditions of expenditure. Appropriations under the control of the Architect of the Capitol shall be available for expenses of travel on official business not to exceed in the aggregate under all funds the sum of $1,000. Appropriations under the control of the Architect of the Capitol shall be available hereafter for expenses of advertising. Capitol Grounds : For care and impr ovement of grounds s ur- rounding the Capitol, Senate and House Office Buildings ; personal and other services ; care of trees ; plantings ; fertilizers ; repairs to pavements, walks, and roadways ; purchase of waterproof wearing apparel ; and for snow removal by hire of men and equipment or under contract without compliance with sections 3709 (U . S . C ., p . 1309, sec. 5) and 3744 (U. S. C., p. 1310, sec. 16) of the Revised Statutes ; $70,920. Balance available. Ante, p. 526. Travel allowances. Advertising expenses. Improving grounds. Snow removal. R. S ., sees. 3709, 3744, pp. 733, 738. U.S.Code, p.1310.

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1447

 1396 SEVE NTIETH CONGRESS. SESS. II. Cm. 367. 1929 . Tre e surg ery . For tree surgery, $5,000. Marshall statue. For a pedestal for the Marshall statue, $1,500. Repairs, g ara ges, etc. For repairs and improvements to Senate and House garages and Maltby Building, including personal services, $1,500. Subway transportation, Capitol and Senate Office Buildings : For repairs, rebuilding, and maintenance of the subway cars connecting th e Sena te Offi ce Buil ding w ith the Senate wing of the Uni ted States Capitol and for personal and other services, including main- tenance of the track and electrical equipment connected therewith, $2,000 . Senate Office Building : For maintenance, miscellaneous items and supplie s, including furniture, furnishings, and equipment and for labor a nd material incident thereto and repairs thereof ; and for pe rsonal a nd other service s for th e care a nd opera tion of the Sena te Office Building, under the direction and supervision of the Senate Committ ee on Rules, $95,628. To enable the Architect of the Capitol to procure preliminary plans and estimates of cost for the completion of the Senate Office Building, including the erection of the wing on the First Street side of said building, the completion of the C Stree t side of the said building so as to conform with the development of the park area to the north, the completion of all approaches heretofore incom- pl eted, an d for la ndscape treatmen t of the court, $10,000. House Office Building : For maintenance, including miscellaneous items, and for all necessary services, $105,403 .20. Capitol power plant : For lighting, heating, and power for the Capitol, Senate and House Office Buildings, Con gressional Library Buildin g, and the grounds about the same, Coast and Geodetic Sur- vey, the Union Station group of temporary housing, Botanic Gar- den, Senate garage, House garage, Maltby Building, folding and stor age rooms of the Sen ate, Government Prin ting Off ice, and Washington City post office ; pay of superintendent of meters, at the rate of $1,940 per annum and $300 additional for the maintenance of an automobile for his use, who shall inspect all gas and electric meters of the Government in the District of Columbia without additional compensation ; personal and other services ; fuel, oil, materia ls, labor, advertising, and purchase of waterproof wearing apparel, in connection with the maintenance and operation of the heating, lighting, and power plant and substations connected there- with, $489,366. Capitol power plant : Stoker equipment, $162,000 ; new turbine, $190,000 ; new electrical distributing equipment, $110,000 ; annex, $65,000 ; renewal, steam pip ing Supreme Court section, Capitol, $13,000 ; lowering flood lights, Capitol, $5,000 ; in all, $545,000, to be immediately available. The appropriations under the control of the Architect of the Capitol may be expended without reference to section 4 of the Act approved June 17, 1910 (U . S . C ., p . 1309, sec . 7), concerning pur- chases for executive departments. The Department of the Interior, the Public Health Service, the Coast and Geodetic Survey, the Union Station group of temporary hous ing, the Gov ernm ent Prin ting Off ice, and the Was hing ton City post off ice shal l reimbu rse the C apitol p ower pla nt for h eat, lig ht, and power furnished during the fiscal year 1930 and the amounts so reimbursed shall be covered into the Treasury. Subway, Capitol to Sen ate Off ice Bui ld- ings. Repairs, etc. Senate Office Build- ing. Maintenance. Plans and estimates for completion of Build- ing to be procured. House Office Build- ing. Maintenance. Capitol power plant. Maintenance. Buildings supplied. Ad dit ion al equi p- ment, etc. Immediately availa- ble. Purchases independ- ent of Supply Com- mi ttee. Vol.36,p. 531. U. S. Code, p. 1309. Reimbursement for current etc ., furnished to other Gov ernment buildings. . Library Buildings and grounds. LIBRARY BUILDING AND GROUNDS Operating force. Salaries : Chief engineer, $2,520 ; chief electrician, $2,520 ; deco- rator, $2,000 ; painter, $1,728 ; assistant engineer-one at $1,860,

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text: Emerson v. Slater

title: Emerson v. Slater


text: Talk:Emerson v. Slater

title: Talk:Emerson v. Slater


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1448

 SEVENTIETH C ONGRESS. SESS. II. CH. 367. 1929 . 1397 two at $1,764 each ; sheet-metal worker, $1,728 ; two machinists at $1,7 64 ea c h ; three assistant el ectricians, at $1 ,8 00 ea ch ; c arpenters- one $1,800, one $1,728 ; plumber, $1,7 40 ; skilled laborers-two at $1,3 20 each, five at $1,260 each ; general mechanic, $1,800 ; two laborers at $1,020 each ; in all, $42,860. For trees, shrubs, plants, fertilizers, and skilled labor for the grounds of Library of Congress, $1,500. For necessary expenditures for the Library Building under the jurisdiction of the Architect of the Capitol, including minor improve- ments, maintenance, repair, equipment, supplies, material, and appur- tenances, and personal and other services in connection with the mechanical and structural maintenance of such building, $21,000. ... † Additions to stacks. The ap propri ation Bookstacks, Library Building, 1929, con- Appropriation co n- tained in the Legislative Appropriation Act, approved May 14, 1928, tin ned. is hereby continued and made available for the same purposes for Ante, p. 527. the fiscal year 1930. Furniture, shelving, For furniture, including partitions, screens, shelving, and electrical etc. work pertaining thereto and repairs thereof, $24,000. site for additional For the acquisition of a site for additional buildings for the buildings. Library of Congress, as authorized in the Act approved May 21, Ante, p.622. 1928 (45 Stat ., p. 622), $600,000. Botanic Garden. Toward carrying out the provisions of the Act entitled "An Act Construction of new to authorize the construction of new conservatories and other neces- Vol .44 con, ries, etc. p . 1262. sary buildings for the United States Botanic Garden," approved Contract s author- March 1, 1927 (44 Stat ., pt. 2, p. 12 62), $30 0,000 , and in addition ized. thereto the Architect of the Capitol, with the approval of the Joint Committee on the Library, is authorized to enter into a contract or contracts for such purposes for not to exceed $576,398. BOTANIC GARDEN Salaries : For the director and other personal services, $101,260 ; all under the direction of the Joint Committee on the Library : Provided, That the quarters, heat, light, fuel, and telephone service heretofore furnished for the director's use in the Botanic Garden shall not be regarded as a part of his salary or compensation, and such allowances may continue to be so furnished without deduction from his salary or compensation, notwithstanding the provisions of section 3 of the Act of March 5, 1928 (45 Stat ., p. 193), or any other law. Repairs and improvements : For procuring manure, soil, tools, purchasing trees, shrubs, plants, and seeds ; materials and miscel- laneous supplies, including rubber boots and aprons when required for use by employees in connection with their work ; traveling expenses and per diem in lieu of subsistence of the director and his assistants not to exceed $475 ; street-car fares not exceeding $25 ; office equipment and contingent expenses in connection with repairs and improvements to Botanic Garden ; maintenance, repair, and opera- tion of passenger motor vehicle, and exchange, care, and maintenance of motor trucks ; purchase of botanical books, periodicals, and books of reference, not to exceed $100 ; general repairs to buildings, green- houses, heating apparatus, packing sheds, storerooms, and stables ; painting, glazing ; repairs to footwalks and roadways ; repairing and putting comfort stations in sanitary condition ; repairs and improve- ments to director's residence ; all under the direction of the Joint Committee on the Library, $71,800. The sum of $300 may be expended at any one time by the Botanic Garden for the purchase of plants, trees, shrubs, and other nursery stock, without reference to section 3709 of the Revised Statutes (U. S. C., p. 1309, sec. 5), Trees, plants, etc. Repairs, etc. Botanic Garden. Director, and person- nel. Proviso. Quarters, etc ., allow- ance, without deduc- tion of p ay. Ante, p. 193. Re pai rs, improve- ments, etc. Minor p urchase, without advertisinc. R. S., sec. 3709, p. 733 . U.S. Code, p. 1309.

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Emerson v. Slater/Opinion of the Court

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

It was the same case which was before this court at a previous term, and is reported in 19 Howard, 224.

The substance of that case and the new view of the present one are fully stated in the opinion of the court, to which the reader is referred.

It was argued by Mr. Hutchins and Mr. Cushing for the plaintiff in error, and Mr. Bates for the defendant.

The points of the argument of the counsel for the plaintiff in error, which are material to be stated in the present report, were the following:

I. At common law, a contract reduced to writing may, by parol agreement of the parties subsequently made, be varied, waived, or discharged, whether the same is a simple contract, or under seal.

Browne on Statute of Frauds, sec. 409, (b) sec. 423.

1 Greenl. on Evidence, secs. 302, 304.

Snow v. Inhabitants of Ware, 13 Met., 42.

Marshall v. Baker, 1 Appleton, 402.

Ballard v. Walker, 3 Johns. Cases, 60.

Goss v. Lord Nugent, 5 Barn. and Adol., 65.

1 Phillips Ev., (Cowen and Hill's Ed.,) p. 563, w. 987.

Sherwin et al. v. Rut. and Bur. R. R., 24 Vt., 347.

Vicary v. Moore, 2 Watts, 451.

Besker et al. v. Troy and Rut. R. R., 27 Vt., 766.

Neil v. Chever, 1 Bailey, (S.C..,) 537.

Munroe v. Perkins, 9 Pick., 298.

White v. Parkin, 12 East., 578.

Fleming v. Gilbert, 3 Johns. Rep., 528.

Keating v. Price, 1 Johns. Cases, 22.

Low v. Treadwell, 3 Fairf., 441.

II. And there is no distinction in this respect between a contract in writing at common law, and a contract required to be in writing by the statute of frauds.

Browne on Statute of Frauds, sec. 423.

1 Greenl. on Ev., secs. 302, 304.

Cummings v. Arnold, 3 Met. 486.

Stearns v. Hall, 9 Cushing, 31.

Caff v. Penn, 1 M. and S., 26.

Goss v. Lord Nugent, 5 Barn. and Adol., 58.

VI. There is a fact in proof in this case, which did not appear in the case when before this court before-and that is, that when Slater made the agreement upon which suit is brought, securities were placed in his hands by the principal debtor to indemnify him for his liability. His promise is not, therefore, within the statute of frauds.

VII. A parol promise to pay the debt of another, in consideration of property placed by the debtor in the promissor's hands, is not within the statute of frauds. It is an original promise, and binding upon the promissor; and in this respect it is immaterial whether the liability of the original debtor continues or is discharged.

1 Browne on Statute of Frauds, sec. 187, p. 184.

Wait, appellant, v. Wait, 28 Vt., (2 Wash.,) 350.

Farley v. Cleveland, 4 Cowen, 432.

1 Smith's Leading Cases, 329.

Hindman v. Langford, 3 Strobhart's Rep., 207.

Cross v. Richardson, 30 Vt., 641.

Fisk v. Thomas, 5 Gray, 45.

Rand v. Mather, 11 Cushing, 1.

Olmstead v. Greenly, 18 Johns., 12.

Hilton v. Dinsmore, 21 Maine, (8 Shep.,) 410.

Cameron v. Clark, 11 Ala., 259.

Loring v. Lee, Spencer, (N. J.,) 337.

Goddard v. Mochbee, 5 Cranch C. C., 666.

Stanley v. Hendricks, 13 Iredell, (N. C.,) 86.

Lee v. Fontaine, 10 Ala., 755.

McKenzie v. Jackson, 4 Ala., 230.

Lippencott v. Ashfield, 4 Sandford, 611.

Westfall v. Parsons, 16 Barb., 645.

Todd v. Tobey, 29 Maine, 219.

VIII. The defendant having waived by parol the performance of the work at the day, thereby himself prevented performance, and he cannot avail himself of the non-performance.

Browne Stat. of Frauds, secs. 423, 424, 425, 436, p. 486.

3 Johnson N. Y., 531.

2 Selden N. Y., 203.

IX. When this case was before this court before, no question was made nor discussion had, whether the promise of the defendant was within the statute of frauds; the question was, simply, whether time was of the essence of the contract; and this court decided that it was.

Emerson v. Slater, 19 Howard, 224.

X. The evidence offered by the plaintiff in error, under the common counts, that the defendant in error had securities in his hands to indemnify him for his promise, took the case from the statute of frauds. It made him an original promissor for the work done after November 14, 1854, (the date of the contract,) and he is therefore liable upon the common counts upon a quantum meruit as an original debtor.

The counsel for the defendant in error contended that the decision of this court in the previous case involved the following propositions:

1. That the original contract between Emerson and the corporation, to build the bridges for the corporation, remained in full force, unaffected by the contract between Emerson and Slater.

2. That, by force of his contract, Slater stood in the relation of a surety for the corporation, for the amount for which he had agreed to become liable.

3. That the time of performance (December 1) was of the essence of Slater's contract, and he was not liable thereon, as Emerson had failed to perform within the time fixed.

If, therefore, the contract of November 14, 1854, was a special promise for the debt, default, or misdoings, of another, it was within the statute of frauds, and the alleged waiver, extension, and substitution, must be in writing, and could not be proved by parol.

This court had decided that performance by the 1st day of December was 'an essential part of this contract.' And, manifestly, a contract cannot be varied in one of its essential parts, without making a new contract.

And when such new contract has been made, it must be declared on. A declaration on the old contract cannot be sustained by showing that, though the old contract has not been performed in one of its essential parts, which is a condition precedent to recovery, yet that a new bargain had been made, by which that essential part had been stricken out of the contract, and something different substituted in its place.

And, accordingly, this plaintiff declares on such new contract in his last count. And, inasmuch as the contract declared on is that of a surety, it must be in writing, and wholly in writing. The statute of frauds is not complied with by producing a contract which is partly in writing, while one of its essential parts rests in parol.

(The counsel then examined a number of English and American cases, to show that this change in the contract fell within the statute of frauds.)

The plaintiff, at the trial in the Circuit Court, introduced three deeds of land, from the railroad corporation to the defendant, dated three days after the defendant entered into the contract of November 14, and said to have been made to indemnify the defendant from his liability under the said contract.

But we are not aware of any case or dictum showing that because a surety, after he has become bound as such, takes security from his principal to indemnify himself against loss by his contract of suretyship, he thereby ceases to be a surety and becomes a principal debtor. There are decisions, no doubt well founded, that an absolute parol promise to pay the debt of another, in consideration of property put into the promissor's hands to enable him to pay the debt, makes the debt his own, and he is not a surety, within the statute of frauds.

But there is no evidence in this record to prove such a case. Slater's promise was not made in consideration of this property. There is no evidence of any agreement, even, to convey it to him at the time he entered into his contract. And it was not actually conveyed to him till three days afterwards. And it is not stated that when it was conveyed to him, it was to enable him to pay the debt, or that it was made him property in consideration of his promise to pay the debt. The contrary is stated. It was put into his hands 'to indemnify the defendant from his liability in said contract, dated November 14, 1854, with the defendant.' Until the defendant should be in some way indemnified, the land, in equity, belonged to the corporation. And as Slater's promise depended on the performance by Emerson before December 1st, if he should not so perform, Slater would not be indemnified, and would have no claim on the land.

It is submitted, no authority exists for the position, that a conditional undertaking to pay the debt of another is taken out of the statute of frauds, because security is given by the principal to indemnify the surety, three days after the conditional contract of suretyship is made.

However true it is that assumpsit for a quantum valebant or quantum meruil will lie, where the terms of a special contract have not all been complied with, to recover the value of the labor and materials held and enjoyed by the defendant, yet nothing is better settled, than that no action can be maintained on the contract itself, without alleging, with exactness, performance in entire accordance with the terms of the contract, including that in relation to time of performance, and proving the allegation.

This proposition has been affirmed in nearly every State.

(The counsel then referred to decisions in this court, and the courts of almost every State in the Union.)

Emerson cannot recover, therefore, unless it be on the common counts; and not then, unless it be on the quantum meruit and valebant. Can he recover on these?

The agreement of November 14 shows that the money an notes given by Slater were to apply to the then indebtedness of the company to Emerson, and were not to apply to any work to be done heretofore-and this was one of the points argued at the former trial, contending that Slater was only a surety. That Emerson understood that he was doing the work for the company is evident from the fact that he charged the company with it, presented to them his bills, settled with its committee, and never presented any charges for work to Slater.

If, as this court has heretofore decided, Slater was a surety for the price of work done for the corporation, there can be no recovery had against him on counts for work, labor, and materials, furnished to himself. None were furnished to himself. The law will not imply a promise to pay another's debt. It requires an express promise in writing.

The evidence given on the trial has no tendency to show any promise by Slater, save by the written contract.

He knew Emerson was going on with his work, both before and after December 1st. That Emerson was bound by his contract with the corporation to do so. And every act and word of Slater, and every omission to speak or act, is entirely consistent with the assumption, that if Emerson should finish the work before December 1st, he was to look to him for the notes; if he should not finish before December 1st, he was to look to the corporation for whom and under a contract with whom he was doing the work.

There is no case of recovering on a quantum meruit or quantum valebant, except for some work or materials done or furnished, and that too for the defendant.

But Emerson furnished no work or materials for Slater. They were all for the railroad company. They were for the benefit of and owned by the company, and Emerson was to be paid for them by the company. The contract between Emerson and Slater guards especially against their release. The company is the only party entitled to offset for any defect in the work, as they are the owners of the work, and as Slater made no stipulations as to its character, except that it be ready for laying the rails for one track. Besides, the completing the bridges for one track was but part of the work Emerson was doing under his contract. He went on and completed his contract with the company, and the whole work was done exactly as it would have been done if Slater's contract had never been made.

Suppose Emerson had died, become insolvent, or in some other way had become absolutely incapacitated from completing the work agreed on by December 1st, would Slater have been liable on a quantum meruit?

How long a time after December 1st would have been allowed to executors of Emerson to complete the work so as to bind Slater?

If Emerson and the railroad company had cancelled their contract, or had the company refused to allow Emerson to continue his work, would Slater have been liable on a quantum meruit?

Mosely v. Hunter, 9 Ired., 119.

If there was anything done distinctly for Slater, as it does not appear what it was by the agreement, Emerson is bound to show what it was, in order to enable the jury to determine what was the amount of the quantum meruit.

He did nothing for Slater. His work was for the corporation, and every stockholder and creditor (of which Emerson is one) is liable if Slater is.

Mr. Justice CLIFFORD delivered the opinion of the court.

This case comes before the court upon a writ of error to the Circuit Court of the United States for the district of Massachusetts. It was an action of assumpsit, brought by the plaintiff in error against the present defendant, upon a written agreement, bearing date on the fourteenth day of November, 1854.

By the terms of the instrument, the plaintiff covenanted and agreed with the defendant, in consideration of the agreements of the latter therein contained, and of one dollar to him paid, that he, the plaintiff, would complete all the bridge work to be done by him for the Boston and New York Central Railroad Company, ready for laying down the rails for one track, by the first day of December next after the date of the contract. In consideration whereof, the defendant agreed that he would pay the plaintiff, within two days from the date of the agreement, the sum of forty-four hundred dollars in cash; and also give to the plaintiff, on the completion of the bridges, and when the rails for one track were laid from Dedham to the foot of Summer street, in Boston, his, the defendant's, five notes, for two thousand dollars each, dated when given, as provided, and made payable to the plaintiff or order, in six months from their date. Another stipulation of the agreement was, that the notes, when paid, were to be applied towards the indebtedness of the railroad company to the plaintiff, and that the agreement was in no way to affect any contract of the plaintiff with the railroad, or any action then pending between them.

When the deciaration was filed, it contained three special counts, drawn upon the written agreement, together with the common counts, as in actions of indebitatus assumpsit.

Performance on the part of the plaintiff, and neglect and refusal on the part of the defendant to give the five notes specified in the agreement, after seasonable demand, constitute the cause of action set forth in the several special counts. They differ in nothing material to be noticed in this investigation, except that, in the first count, performance on the part of the plaintiff is alleged, according to the contract, on the first day of December, 1854, while in the second and third counts it is alleged at a period twenty days later.

An additional special count was afterwards filed by consent, which, in one respect, varies essentially from the other counts. After setting out the substance of the contract, it alleges that the defendant waived performance at the day stipulated in the agreement, and extended the time to the twentieth day of the same December, and that the plaintiff performed and completed the work within the extended time. Demand of the notes prior to the commencement of the suit, substantially as alleged, was admitted at the trial, as were also the execution of the agreement and the payment by the defendant of the forty-four hundred dollars.

As appears by the transcript, the cause has been twice tried upon the same pleadings. At the first trial, the verdict was for the plaintiff; but the defendant excepted to the rulings and instructions of the Circuit Court, and, after judgment, removed the cause into this court by writ of error.

Among the questions presented on the writ of error, the principal one was whether, by the true construction of the written agreement, time was of the essence of the contract. That question was directly presented by the fourth exception; and this court held, that the refusal of the circuit judge to instruct the jury, prayed by the defendant, that the plaintiff could not recover on the special counts without showing that the work was completed by the day stipulated in the contract, was error. Accordingly, the judgment was reversed, and the cause remanded, with driections to issue a new venire.

In the opinion delivered on the occasion, this court said, in effect, that in cases where time is of the essence of the contract, there can be no recovery on the written agreement, without showing performance within the time limited; but added, that a subsequent performance and acceptance by the defendant will authorize a recovery in a quantum meruit. Slater v. Emerson, 19 How., 239.

Failing to show performance at the day named in the agreement, the plaintiff, at the last trial, offered to prove by parol to the effect that, after the date of the agreement, and before as well as after the day specified for the completion of the work, the defendant, by his conduct, acts, and declarations, waived and dispensed with performance at the day named in the written agreement, and agreed to substitute therefor performance on the twentieth day of the same December, and to deem performance on the day last named as equivalent to performance on the day specified in the written agreement, and that the work was fully performed within the extended time.

Objection was made by the defendant to this testimony, upon the ground, that the written agreement declared on was a special promise for the debt, default, or misdoings of another; and that the alleged waiver, substitution, and extension, not being in writing, were within the statute of frauds; and the court sustained the objection, and excluded the testimony. To which ruling of the court the plaintiff excepted.

He then proposed to proceed upon the common counts, and offered evidence accordingly. After reading the agreement set up in the special counts, he introduced three deeds, each dated November 17, 1854, purporting to convey certain parcels of real estate therein described. They were each given by the railroad company to the defendant, to indemnify him for the liability he assumed in the before-mentioned written agreement with the plaintiff. Estimating the value of the real estate so conveyed by the considerations expressed in the respective deeds, it amounted in the aggregate to the sum of thirteen thousand five hundred dollars.

He also introduced a memorandum agreement between the defendant and the railroad company, whereby the former leased to the latter ten hundred and fifty tons of railroad iron, to be laid down by the company and used on their railroad. By the terms of the last-named agreement, the railroad iron was estimated at the value of sixty-eight thousand four hundred dollars; and the company agreed to pay the defendant, for the use of the iron, five thousand dollars per month, the first payment to be made on the first day of March then next, and so upon the first day of each succeeding month, until the whole sum was paid, with interest on the same from a given day-the defendant agreeing, if there was no default of the payments, when the whole was paid, to sell and deliver the iron to the company for the estimated value, including the interest.

To secure these payments, together with the interest, the railroad company, by the same instrument, assigned and set over to the defendant the proceeds of the railroad, to an amount equal to the estimated value of the iron, with the interest, and authorized and required the superintendent of the road to retain in his own hands, out of the proceeds, a sum sufficient to pay the amount to the defendant, in the manner and at the times specified in the agreement.

Emerson's contract with the railroad company was also introduced, and makes a part of the record. It bears date on the seventeenth day of December, 1853, and provides, on the one part, that the plaintiff shall build and complete, sufficient for the passage of an engine over the same by the first day of May then next, all the bridging, as then laid out and determined upon by the engineer, from the wharf, near the foot of Summer street, in Boston, to Dorchester shore, and to complete the same as soon thereafter as might be reasonably practicable. On the other part, the agreement prescribes the compensation to be paid by the railroad company to the plaintiff, for building and completing the respective works therein designated and described, stipulating that eighty-five per cent. upon the estimated value of the materials furnished, and seventy-five per cent. upon the estimated value of the labor performed, should be paid monthly, as the work was done, and that the balance should be paid by the company upon the completion and acceptance of the whole work.

Parties to the suit are by law competent witnesses in the courts of Massachusetts; and under that law the plaintiff was examined in this case.

He also called and examined five other witnesses. From this parol testimony, it appears that securities were put into the hands of the defendant, deemed by him and the company adequate, at the time, to indemnify him against his contract with the plaintiff. Those securities, two of the witnesses say, consisted of real estate, and the bonds of the company for seventeen thousand dollars, secured by a mortgage upon the load. In respect to the real estate, it is to be observed that the deeds of conveyance bear date three days after the date of the contract; but the presumption from the circumstances is a reasonable one, that they were given in pursuance of the arrangement made at the time the contract was executed. It also appeared that the company failed in July, 1854, and that it was actually insolvent at the date of these transactions.

Prior to the date of the agreement of the 14th of November, 1854, the plaintiff had stopped work under his contract with the company, and refused to continue it. As soon as the contract with the defendant was made, he resumed the work on the briridges, and finished them about the middle of December, 1854; but the rails were not all laid by the company until the twenty-first day of the same month

At the date of the contract between these parties, the defendant was a large stockholder in the corporation, and holder of the bonds of the company, which were secured by a mortgage of the road to trustees. During the progress of the work under the contract between these parties, and before the day therein named for the completion of the work, the officers of the company, or some of them, repeatedly stated to the plaintiff, in the presence of the defendant, and without objection on his part, that all the company wanted was, that the plaintiff should keep out of the way of the track-layers.

Three of the directors, including the defendant, on the twenty-fourth day of November, 1854, called on the plaintiff while he was at work on one of the bridges, and inquired of him if he could complete it by the fourth day of the then next month, stating to him the reason why it was desirable that he should do so-and by working nights and Sundays he completed it, according to their request.

Several witnesses state-and among the number the one who laid the rails for the company-that the track-layers were not delayed by the plaintiff; and the plaintiff testified that the defendant never objected because the bridges were not completed by the day specified in the written agreement. On being recalled, he further testified that he paid, for work done and materials furnished after that day, the sum of eleven thousand one hundred and fifty-seven dollars and eighty-four cents, and that he had not received a dollar for it from any source.

Thereupon the presiding justice ruled and instructed the jury that, upon this testimony, the plaintiff was not entitled to recover on the common counts, and directed the jury to return their verdict for the defendant. Accordingly, the jury found that the defendant never promised; and the plaintiff excepted to the rulings and instructions of the court.

Several questions were discussed at the bar, which, in the view we have taken of the case, it will not be necessary to decide.

'Both of the exceptions to the rulings and instructions of the court necessarily involve the construction of the contract between these parties; but the question presented is widely different from the one considered and decided by this court on the former record. On that occasion, the single question of any importance was, whether, by the true construction of the contract, it was agreed and understood between the parties to the instrument that the completion of the work at the time therein prescribed was a condition on which the obligation of the defendant to give the notes was to depend.

Contrary to the ruling of the circuit judge, this court held that the covenants of the respective parties were dependent, that time was of the essence of the contract, and remanded the cause for a new trial.

That rule of construction, beyond doubt, is the law of the contract, and no attempt has been made to evade or question it on either side in this controversy. But the question now presented is of a very different character.

It is insisted by the plaintiff that the promise of the defendant was an original undertaking, on a good and valid consideration, moving between the parties to the instrument. On the part of the defendant, it is insisted that his undertaking was a special promise for the debt, default, or misdoings, of another, and so within the statute of frauds.

If the theory of the plaintiff be correct, then it would seem to follow that the rulings and instructions of the Circuit Court were erroneous. Verbal agreements between the parties to a written contract, made before or at the time of the execution of the contract, are in general inadmissible to vary its terms, or to affect its construction. All such verbal agreements are considered as merged in the written contract. But oral agreements subsequently made, on a new and valuable consideration, and before the breach of the contract, in cases falling within the general rules of the common law, and not within the statute of frauds, stand upon a different footing. Such subsequent oral agreements, not falling within the exception mentioned, may have the effect to enlarge the time of performance specified in the contract, or may vary any other of its terms, or may waive and discharge it altogether. On this point, the authorities are numerous and decisive, of which the following are examples: Goss v. Nugent, 5 Barn. and Ad., 65; Nelson v. Boynton, 3 Met., 402. Speaking of the exceptions to the general rule, that parol evidence is not admissible to contradict or vary the terms of a written instrument, Mr. Greenleaf says: 'Neither is the rule infringed by the admission of oral evidence to prove a new and distinct agreement upon a new consideration, whether it be a substitute for the old one, or in addition to and beyond it; and if subsequent, and involving the same subject matter, it is immateriai whether the new agreement be entirely oral, or whether it refers to and partially or totally adopts the provisions of the former contract in writing, provided the old agreement be rescinded and abandoned.' 1 Green. Ev., 303. But the rule, so far as it is applicable to this case, is better stated by Lord Denman, in Goss v. Nugent, 5 Barn. and Ad., 665, wherein he says: 'After the agreement has been reduced into writing, it is competent to the parties, in cases falling within the general rules of the common law, at any time before the breach of it by a new contract, not in writing, either altogether to waive, dissolve, or annul, the former agreement, or in any manner to add to or subtract from or vary or qualify the terms of it, and thus to make a new contract.' That rule was afterwards qualified by the same learned judge in a particular not essential to the present inquiry; and with that qualification it appears to be the rule constantly applied by the English courts, in cases not within the statute of frauds, to the present time. Harvey v. Grabham, 5 Ad. and El., 61; 1 Phil. Ev., (Cow. & Hill's ed.,) p. 563, n. 987; Munroe v. Perkins, 9 Pick., 298; Snow v. Inhabitants of Ware, 13 Met., 42; Vicary v. Moore, 2 Watts, 451; Cummings v. Arnold, 3 Met., 489; Fleming v. Gilbert, 3 Johns. R., 528.

On the other hand, assuming the theory of the defendant to be correct, that, by the true construction of the contract, his undertaking was a special promise for the debt, default, or misdoings, of the railroad company, then perhaps the better opinion is, according to the weight of authority, that a written contract within the statute of frauds cannot be varied by any subsequent agreement of the parties, unless such new agreement is also in writing. Marshall v. Lynn, 6 Mee. and Wels., 109; Goss v. Nugent, 5 Barn. and Ad., 58; Harvey v. Grabham, 5 Ad. and El., 61; Stowell v. Robinson, 3 Bing. N. C., 927; Stead v. Dowber, 10 Ad. and El., 57; Emmet v. Dewhurst, 8 Eng. L. and Eq., 88; Hasbrouk v. Tappan, 15 Johnson's R., 200; Blood v. Goodrich, 9 Wen., 68; Stevens v. Cooper, 1 Johnson's Ch. R., 429; Clark v. Russel, 3 Dall., 415. Decided cases, however, are referred to, from the Massachusetts reports, which evidently wear a different aspect, and it is contended by the counsel for the plaintiff that the principle adopted in those cases constitutes the rule of decision in this case; but it is unnecessary to determine that point at the present time, as we are of the opinion that the promise of the defendant contained in the written agreement was an original undertaking, on a good and valid consideration moving between the parties to the instrument. Nelson v. Boynton, 3 Met., 396; Stearns v. Hall, 9 Cush., 31.

Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal debtor, are, in general, within the statute of frauds. Other cases arise which also fall within the statute, where the collateral agreement is subsequent to the execution of the debt, and was not the inducement to it, on the ground that the subsisting liability was the foundation of the promise on the part of the defendant, without any other direct and separate consideration moving between the parties. But whenever the main purpose and object of the promissor is not to answer for another, but to subserve some peouniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability. Nelson v. Boynton, 3 Met., 400; Leonard v. Vredenburg, 8 Johns. R., 39; Farley v. Cleveland, 4 Cow., 432; Alger v. Scoville, 1 Gray, 391; Williams v. Leper, 3 But., 1886; Castling v. Aubert, 2 East., 325; 2 Parsons on Con., 306. Nothing is better settled than the rule, that if there is a benefit to the defendant, and a loss to the plaintiff, consequential upon and directly resulting from the defendant's promise in behalf of the plaintiff, there is a sufficient consideration moving from the plaintiff to enable the latter to maintain an action upon the promise to recover compensation. 2 Addison on Con., 1002, and cases cited. Other authorities state the proposition much stronger, authorizing the conclusion that benefit to the party by whom the promise is made, or to a third person at his instance, or damage sustained at the instance of the party promising, by the party in whose favor the promise is made, is sufficient to constitute a good and valid consideration on which to maintain an action. Violet v. Patton, 5 Cr., p. 150; Chitt. on Con., p. 28; Townsley v. Sumrall, 2 Pet., p. 182.

Apply these principles to the terms of the written agreement, in view of the attending circumstances and the subject matter, and it is quite clear that the promise of the defendant was an original undertaking on a good and valid consideration moving from the plaintiff at the time the instrument was executed. On its face it purports to be a contract between the parties, for their own benefit; one agreeing to do certain work, and furnish certain materials, and the other agreeing to pay therefor a stipulated compensation. Their promises are mutual, and in one respect dependent. In consideration that the plaintiff engaged to do the work and furnish the materials by a given day, the defendant, on his part, agreed, among other things, when the work was completed, to give the plaintiff the five notes therein described. Reference was made to the contract of the plaintiff with the railroad company in the first instance, as descriptive of the work to be done, and of the materials to be furnished; and in the second instance, doubtless for the reason that, as a part of the transaction, the company had placed, or agreed to place, securities in the hands of the defendant, to indemnify him for the liability he thereby assumed to the plaintiff. Part of those securities were delivered over to the defendant at the time, and the residue as soon thereafter as the conveyances could conveniently be made. But when we consider the attending circumstances, the presumption is much stronger that the arrangement was one mainly, if not entirely, for the individual benefit of the defendant.

Prior to that date, the railroad company had failed, and was utterly insolvent, owning nothing, it seems, except the securities transferred to the defendant for his indemnity in this transaction, and the franchise of the road. Unlike what was exhibited in the former record, it now appears that the defendant had large interests of his own, separate from his relation to the company as a stockholder, which were to be promoted by the arrangement. He had leased to the company railroad iron for the use of the road, amounting in value to the sum of sixty-eight thousand dollars, and, as a security for payment, held an assignment of the proceeds of the road to that amount, with interest, which was to be paid in monthly instalments of five thousand. Now, unless the bridges were completed and the road put in a condition for use, there would be no proceeds; and as he had already taken into his possession all the available means of the company to secure himself for this new liability, should the road not be completed, the company could not pay for the iron.

In this view of the subject, it is manifest that the arrangement was one mainly to promote the individual interest of the defendant. Damage also resulted to the plaintiff, as is obvious from the whole transaction. Under his contract with the company, they had stipulated to pay him monthly eighty-five per cent. upon the estimated value of the materials furnished, and seventy-five per cent. upon the estimated value of the labor performed as the work was done. Failing to receive those monthly payments from the company, the plaintiff, as he had a right to do, stopped the works, and refused to proceed, in consequence of the failure of the company to make the monthly payments. To remedy this difficulty, and insure the completion of the bridges so as to render the road available for use, this arrangement was made by the defendant. It was not an arrangement to pay a subsisting indebtedness, but only for work to be done and materials to be furnished; monthly payments were discontinued, and the plaintiff was induced, with an advance of forty-four hundred dollars, to resume and complete the work at his own expense. Without detailing more of the evidence, as exhibited in the statement of the case, it will be sufficient to say that, in view of all the attending circumstances, we think it is clear that the promise of the defendant was an original undertaking upon a good and valid consideration moving between the parties to the written agreement.

For these reasons, we think the plaintiff had a right to proceed upon the common counts, and that it was error in the presiding justice to direct a verdict for the defendant. It is also contended by the plaintiff that the effect of the indemnity given by the railroad company to the defendant was to take the contract out of the statute of frauds; but we do not find it necessary to determine that question at the present time.

The judgment of the Circuit Court is therefore reversed, with costs, and the cause remanded with directions to issue a new venire.

title: Emerson v. Slater/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1449

 1398 SEVEN TIETH C ONGRESS. SEss. II. CH. 367. 1929 . LIBR ARY OF C ONGR ESS SA LARIES Library of Congress. Son b arian, and per- For the Librarian, chief assistant librarian, and other personal Copyright office. sonno l ter, and per- For the R egister of Cop yrights, assi stant registe r, and other personal services, $228,740. Leg islat ive R efer ence Service. LEGISLATIVE REFERENCE SERVICE nerwork for desig- To enable the Librarian of Congress to employ com petent persons to gather, classify, and make available, in translations, indexes, digests, compilations, and bulletins, and otherwise, data for or bear- ing upon legislation, and to render such data serviceable to Congress and committees and Members thereof, including not to exceed $5,700 for e mployees enga ged on piecewo rk and work b y the day or hour at rat es to be fixe d by th e Libr arian, $70,950. DISTRIBUTION OF CARD INDEXES Card indexes. Distribution service. For the distribution of card indexes and other publications of the Li brar y, i nclu ding per sona l se rvic es, frei ght char ges (not exc eedi ng $500) expressage, postage, traveling expenses connected with such distribution, expenses of attendance at meetings when incurred on the written authority and direction of the Librarian, and including not to exceed $36,300 for employees engaged on piecework and work by the day or hour at rates to be fixed by the Librarian ; in all, $149,050. Temporary services. State legislation. Preparing index and digest of. Vol. 44, p. 1066. U.S. Code, Supp.I, p.164. Balance available. Ante, p. 528. Proviso. Biennial report to Congress, repealed. Sunday opening. Expenses. services, $722,345. COPYRIGHT OFFICE TEMPORARY SERVICES For special and temporary service, including extra special services of regular employees, at rates to be fixed by the Librarian, $3,000. IND EX TO STA TE LE GIS LAT ION To enable the Librarian of Congress to prepare an index to the legislation of the several States, together with a supplemental digest of the more important legislation, as authorized and directed by the Act entitled "An Act providing for the preparation of a biennial index to State legislation," approved February 10, 1927 (U. S. C., Supp . I, p . 4, sees . 164, 165), including personal and other services wi thin and wit hout the Dis tric t of Col umbi a (i nclu ding not to exce ed $2,500 for special and temporary service at rates to be fixed by the Librarian), travel, necessary material and apparatus, printing and binding incident to the work of compilation, stationery, and inciden- tals, $33,280, together with the unexpended balance of the appropria- tion for this purpose for the fiscal year 1929 : Provided, That so much of the Act approved February 10, 1927, as requires the Libra- rian to biennially report to Congress an index and digest of State legislation is repealed, and the Librarian of Congress is directed to have such indexes and digests printed and bound for official distribution only. SUNDAY OPENING To enable th e Library of Congress to b e kept open fo r reference use on Sundays and on holidays within the discretion of the Libra- rian, including the extra services of employees and the services of additional employees under the Librarian, at rates to be fixed by the Librarian, $15,000.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1450

 SEVEN TIETH C ONGRESS. SEss. II. CH. 367. 1929 . IN CREAS E OF THE LIB RA RY For purchase of books, miscellaneous periodicals and newspapers, and all other material, for the increase of the Library, including payment in advance for subscription books and society publications, and for freight, commissions, and traveling expenses including expenses of attendance at meetings when incurred on the written authorit y and dir ection of the Libr arian in the inte rest of c ollection s, and all other exp enses inc idental t o the ac quisition of books, miscell a- neou s per iodic als a nd n ewspa pers, and all other mat erial for the increa se of the Li brary, by pu rchase, gift, beque st, or excha nge, t o continue available during the fiscal year 1931, $105,000. For purchase of books and for periodicals for the law library, under the direction of the Chief Justice, $3,000. For purchase of new books of reference for the Supreme Court, to be a part of the Library of Congress, and purchased by the marshal of the Supreme Court, under the direction of the Chief Justice, $2,500. PRINTING AND BINDING For miscellaneous printing and binding for the Library of Con- gress, including the Copyright Office, and the binding, rebinding, and repairing of library books, and for the Library Building, $196,0 00 . Fo r the public ation of the Catal ogue o f Title Entri es of the Co py- right Office, $45,000. Fo r the printi ng of catalo gue ca rds, $ 115,000. CONTINGENT EXPENSES OF THE LIBRARY For miscellaneous and contingent expenses, stationery, supplies, stoc k, an d mat erial s di rectl y pur chas ed, m iscel lane ous t ravel ing expenses, postage, transportation, incidental expenses connected with the administration of the Library and Copyright Office, including not exceeding $500 for expenses of attendance at meetings when incurred on the written authority and direction of the Librarian, $13,000. L IBRAR Y BUI LDING Salaries : For the superintendent, disbursing officer, and other personal services, $148,247. For e xtra servi ces of em ploye es a nd ad ditio nal e mplo yees under the Librarian to provide for the opening of the Library Building on Sundays and on legal holidays, at rates to be fixed by the Librarian, $4,700. For special and temporary services in connection with the custody, care, and maintenance of the Library Building, including extra special services of regular employees at the discretion of the Libra- rian, at rates to be fixed by the Librarian, $500. For mail, delivery, and telephone services, rubber boots and rubber coats for workmen, stationery, uniforms for guards, miscellaneous supplies, and all other incidental expenses in connection with the custody and maintenance of the Library Building, $7,000. For any expense of the Library of Congress Trust Fund Board not properly chargeable to the income of any trust fund held by the b oard, $500. GOVERNMENT PRINTING OFFICE PUBLI C PRI NTING AND BINDING : To provide the Public Printer with a working capital for the following purposes for the execution of printing, binding, lithographing, mapping, engraving, and other authorized work of the Government Printing Office for the various 1399 Increase of the Li- brary . Purch ase o f boo ks, etc. Law b ooks, etc. Reference books for Supreme Court. Printing and bind- ing. Cata logue of T itle Entries. Catalogue cards. Contingent expenses. Attendance at meet- ings. Libr ary B uildi ng. Superintendent, etc. Sund ay op ening. Temporary services, care of building, etc. Incidental expenses. Trust Fund Board. Go ver nm ent Print- ing Office. Printing and bind- ing . Working capital pro- vided.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1451

 1400 SEVENTIETH CONGRESS. SEss. II. Cx. 367 . 1929 . Public Printer, and branches of the Government : For salaries of Public Printer, $10,000, Deputy. Salaries, wages, etc. and Deputy Public Printer, $7,500 ; for salaries, compensation, or wages of all necessary officers and employees additional to those herein appropriated for, including employees necessary to handle Holidays. waste paper and condemned material for sale ; to enable the Public Printer to comply with the provisions of law granting holidays and Executive orders granting holidays and half holidays with pay to Leaves of absence. employees ; to enable the Public Printer to comply with the pro- visions of law granting thirty days' annual leave to employees with Contingent ex penses. pay ; rents, fuel, gas, heat, electric current, gas and electric fixtures ; bicycles, motor-propelled vehicles for the carriage of printing and printing supplies, and the maintenance, repair, and operation of the same, to be used only for official purposes, including purchase, exchange, operation, repair, and maintenance of motor-propelled passenger-carrying vehicles for official use of the officers of the Government Printing Office when in writing ordered by the Public Printer (not exceeding $4,000) ; freight, expressage, telegraph and telephone service ; furniture, typewriters, and carpets ; traveling expenses ; stationery, postage, and advertising ; directories, technical books, newspapers and magazines, and books of reference (not exceeding $500) subscriptions for which may be paid in advance ; adding and numbering machines, time stamps, and other machines me tetc. equip of similar character ; machinery (not exceeding $200,000) ; eq uip- ment, and for repairs to machinery, implements, and buildings, and for minor alte rations to bu ildings ; ne ces sar y equ ipm ent, m ain te- nance, and supplies for the emergency room for the use of all employees in the Government Printing Office who may be taken suddenly ill or receive injury while on duty ; other necessary con- tingent and mi scellaneous i tems authorize d by the Publ ic Printer Provisos. Provided That inks and other supplies manufactured b Furnishing Supplies I glues, y to departments, etc. the Government Printing Off ice in connect ion with its work may be furnished to departments and other establishments of the Govern- ment upon requisition, and payment made from appropriations available therefor ; for expenses authorized in writing by the Joint Committee on Printing for the inspection of printing and binding equipment, material and supplies and Government print' n pl ants in the District of aolumbia or elsewhere (not exceeding 1,00 0) ; ionaldRecord. cOIIgress for salaries and expenses of preparing the semimonthly and session indexes of the Congressional Record under the direction of the Paper, materials, etc. Joint Committee on Printing (chief indexer at $3,150, one cata- loguer at $2,880, and two cataloguers at $2,150 each) necessary labor, paper, materials, and equipment needed in the prose- Cha rged to Cong ress . cution and delivery and mailing of the work ; in all, $2,500,000, to which shall be charged the printing and binding authorized to be architect of the Cap- done for Congress, the printing and binding for use of the Govern- i tol . ment P rintin g Offi ce, a nd pri nting and bi nding (not exceed ing $2,000) for official use of the Architect of the Capitol when author- c ontra cts for out- ized by the Secretary of the Senate ; in all to an amount not exceed- side work . lng this sum : Provided further, That hereafter such printing, bind- ing and blank-book work authorized by law, as the Public Printer is not able or equipped to do at the Government Printing Office, may be produced elsewhere under contracts made by him with the approval of th e Joint Commi ttee on Printi ng. gre aseon al workr con- Printing and binding for Congress chargeable to the foregoing appropriation, when recommended to be done by the Committee on Printing of either House, shall be so recommended in a report con- taining an approximate estimate of the cost thereof, together with a statement from the Public Printer of estimated approximate cost of work previously ordered by Congress within the fiscal year for which this appropriation is made.
 * and for all the

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1452

 SEVENTIETH C ONGRESS. SEss. II. CH. 367. 1929. 1401 During the fis cal year 1930 any executive department or rode- era Iyementby for d work pend ent es tablis hment of th e Gove rnment orde ring p rintin g and ments, etc ƒ binding from the Government Printing Office shall pay promptly by check to the Public Printer upon his written request, either in advance or upon completion of the work, all or part of the estimated or actual cost thereof, as the case may be, and bills rendered by the Public Printer in accordance herewith shall not be subject to audit or certification in advance of payment : Provided, That proper adjust- rovomer t of ac- ments on the basis of the actual cost of delivered work paid for in cou nts. advance shall be made monthly or quarterly and as may be agreed upon by the Public Printer and the department or establishment concerned . All sums paid to the Public Printer for work that he credited pto for is authorized by law to do shall be deposited to the credit, on the capital. books of the Treasury Department, of the appropriation made for the working capital of the Government Printing Office, for the year in which the work is done, and be subject to requisition by the Public Printer. All amounts in the Budget for the fiscal year 1931 for printing p rtm nts, etc«rto be and binding for any department or establishment, so far as the incorporated in single Bureau of the Budget may deem practicable, shall be incorporated in a single item for printing and binding for such department or establishment and be eliminated as a part of any estimate for any Details to be given it other purpose. And if any amounts for printing and binding are part of other items. included as a part of any estimates for any other purposes, such amounts shall be set forth in detail in a note immediately following proviso. the general estimate for printing and binding : Provided, That the Engraving and Print- foregoing requirements shall not apply to work to be executed at the mg Bureau excepted. Bureau of Engraving and Printing. Restriction on pay- No part of any money appropriated in this Act shall be paid to ing detailed employees. any person employed in the Government Printing Office while detailed for or performing service in any other executive branch of the public service of the United States unless such detail be authorized by law. -' Eq uipmen t for new Equipment for new addit ion to Govern ment Printing Office Build- a d d i t i o n. ings : To enable the Public Printer to equip the new eight-story addition to the Government Printing Office Buildings with the neces- sary steel filing equipment, intercommunicating carrier system, laboratory equipment, and other miscellaneous equipment not hereto- Available until ex. fore provided for under construction of the building, $200,000, to be pended. available until expended. Office of Superintend- OFFICE OF SUPERINTENDENT OF DOCUMENTS ent of Documents. For the Superintendent of Documents, assistant superintendent, pers Suonnelperin.tendent, and and other personal services in accordance with the Classification Act V1nte, p.188 of 1923, as amended (U . S . C., p . 65-71, sets . 661-673, 45 Stat ., pp .uscode,p.65. 776-785), and compensation of employees paid by the hour who shall vol .43, p .658. be subject to the provisions of the Act entitled "An Act to regulate u . S. Code, p. 1417. and fix rates of pay for empl oyees and offi cers of the G overnment Printing Office," approved June 7, 1924 (U. S . C ., p . 1417, sec . 40), $524,000 : Provided, That for the purpose of conforming to section ~m a separate unit. 3 of this Act this appropriation shall be considered a separate Post, p.1402. appropriation unit. For furniture and fixtures, typewriters, carpets, labor-saving Contingent expenses. machines and accessories, time stamps, adding and numbering machines, awnings, curtains, books of reference (subscriptions to which may be paid in advance) ; directories, books, miscellaneous office and desk supplies, paper, twine, glue, envelopes, postage, car fares, soap, towels, disinfectants, and ice ; drayage, express, freight, telephone and telegraph service ; traveling expenses (not to exceed $200) ; repairs to bui lding, elevat ors, and mach inery ; pre serv ing

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text:
Overton v. Cheek

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of West Tennessee.

Mr. Davidge moved to dismiss the writ for the following reasons, which motion was opposed by Mr. Gillet.

In this cause, a transcript of the record was filed in the office of the clerk of this court on the eighteenth day of February, 1858, and the cause was thereupon docketed. No writ of error was returned with the transcript; nor has any writ of error, in a legal sense, ever been returned. But on the twenty-seventh day of December, 1859, a paper was filed in the clerk's office, in form of a writ of error, but without the seal of the Circuit Court, whose proceedings are to be re-examined, and without an authenticated transcript of the record annexed to and returned with it, as required by the judiciary act.

By reference to the transcript, it will appear that the judgment of the Circuit Court was rendered on the sixteenth day of April, 1857. At the ensuing term of this court, the transcript was filed. The paper filed in the clerk's office purports to have been issued by the clerk of the Circuit Court on the seventeenth day of April, 1857, and it is returnable to this court on the first Monday of December, 1857. It does not appear ever to have been filed in the Circuit Court. There is no citation.

It is submitted—

1. That in order to give jurisdiction to this court, the writ of error must be under the seal of the Circuit Court, whose clerk is authorized to issue it. Act of Congress of May eighth, 1792, sec. 9; (1 Statutes at Large, 278.)

2. That the writ of error must be returned at the ensuing term. If a term intervene, the objection is fatal.

Hamilton v. Moore, 3 Dallas, 371.

Steamer Virginia v. West et al., 19 Howard, 182.

Villalobos v. United States, 6 Howard, 81.

United States v. Carey, ib., 106.

3. That there must be annexed to, and returned with, the writ, an authenticated transcript of the record. Without the writ, the transcript is filed without authority of law; and a writ of error without the record of the court to be reviewed, or reasons for not returning it, is not returned. Here the writ of error comes back as it went out. There is no return, and hence no jurisdiction.

4. The writ does not appear to have been filed in the Circuit Court.

Brooks v. Norris, 11 Howard, 204.

5. There was no citation, and no legal evidence of the waiver of the citation. The transcript filed does show that the citation was waived; but that transcript is not legally before this court, not having been returned in obedience to process.

6. That the transcript was not returned in conformity with law and the rules of this court.

Mr. Justice McLEAN delivered the opinion of the court.

title: Overton v. Cheek


text: Talk:Overton v. Cheek

title: Talk:Overton v. Cheek


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1453

 1402 SEVENTIETH CONGRESS. SEss. II. Cii. 367. 1929 . sanitary condition of building, light, heat, and power ; stationery and office printing, including blanks, price lists, and bibliographies, $85,000 ; for catalogues and indexes, not exceeding $25,000 ; for supplying books to depository libraries, $85,000 ; in all, $195,000 : Proviso. Provided That no art of this sum shall be used to supply to de osi- Supp lying depos i- h ll tary libraries restr icted. tor y libraries a ny documents, books, or oth er printed ma tter not Printing reports o f requested by such libraries. departments, etc ., may In order to keep the expenditures for printing and binding for the be discontinued. fiscal year 1930 within or under the appropriations for such fiscal year, the heads of the various executive departments and independent establishments are authorized to discontinue the printing of annual Proviso. Originals to be kept or special reports under their respective jurisdictions : Provided, for public inspection. That where the printing of such reports is discontinued, the original copy thereof shall be kept on file in the offices of the heads of the respective departments or independent establishments for public inspection. Purchases allowed with out referenc e to Purchases may be made from the foregoing appropriations under Supply 8po ttee, i the " Government Printing Office," as provided for in the Printing Vol.36,p. 631. Act approved Jan uary 12, 1895, and without reference to section 4 ii.S. Code, p. 1309. of the Act approved June 17, 1910 (U. S. C., p. 1309, sec. 7), con- cerning purchases for executive departments. Pction e vehicles re- SEC stric tion . 2 . No part of the funds herein appropriated shall be used Re stri ction on ex- for the maintenance or care of private vehicles. ceeding average salaries SEC. 3. In expending appropriations or portions of appropriations, in do ignnat n ed ooices. contained in this Act, for the payment for personal services in the Ante, p. 77 6 6. Dis trict of Colu mbia in accor dance with the Classificati on Act o f II. S. Code, p .1417. 1.923, as amended (U . S. C., pp. 65-71, sets. 661-673 ; 45 Stat., pp. 776-785), the average of the salaries of the total number of persons under any grade in the Botanic Garden, the Library of Congress, or If only one position the Government Printing Office, shall not at any time exceed the aver- in a grade. age of the compensation rates specified for the grade by such Act, as amended, and in grades in which only one position is allocated Advances allowed in the salary of such position shall not exceed the average of the com- unusually meritorious pensation rates for the grade, except that in unusually meritorious cases. cases of one position in a grade advances may be made to ra tes higher than the average of the compensation rates of the grade but Proviso. not more often than once in any fiscal year, and then only to the next Not app lic ab le to higher rate : Provided, That this restriction shall not apply (1) to cleric al-mechani cal se rvi ce. gr ades 1, 2, 3, and 4 of the cleric al-mech anical servic e, (2) to req uire No fixed salary re- duction. the reduction in salary of any person whose compensation was fixed . Vol.42,p.1490. as of July 1, 1924, in accordance with the rules of section 6 of such Transfe rs to anothe r position without reduc- Act, (3) to require the reduction in salary of any person who is trans- tion. ferred from one position to another position in the same or different grade in the same or a different bureau, office, or other appropriation Higher salary rates unit, or (4) to prevent the payment of a salary under any grade at allowed. a rat e higher than the maximum r ate of the gr ade when such higher rate is permitted by the Classification Act of 1923, as amended, and Joint congressional is specifically authorized by other law. Committee created. SEC. 4 . A joint committee of Congress is hereby created, consisting of three Senators, to be appointed by the Vice President, and three Members of the House of Representatives of the Seventieth Congress, To repo rt on adjust - who are Members elect to the Seventy-first Congress, to be appointed pant of number employees and of pay of by th e Speaker. It shal l be th e duty of the joint committ ee to inves- Con g ress, and of tigate and report to the first session of the Seventy-first Congress, by Architect of the Capi- tol. bill or otherwise, what adjustments, if any, should be made in the numbers and compensation of the officers and employees of the Sen- ate and House of Representatives, including joint committees, joint commissions, and other joint services of the two Houses, and of the office of the Architect of the Capitol. Approved, Fe bruary 28, 1. 92 9.

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text:
Overton v. Cheek/Opinion of the Court

This purports to be a writ of error to the Circuit Court of the United States for the district of West Tennessee.

By reference to the transcript, it appears that the judgment of the Circuit Court was rendered the sixteenth of April, 1857. At the ensuing term of the Supreme Court, the transcript was filed.

It appears that a writ of error in the Circuit Court was allowed, in open court, and signed by the clerk the seventeenth day of April, 1857, which was returnable to the Supreme Court on the first Monday of December, 1857. But this writ had no seal, nor was it returned with the transcript to the Supreme Court. But on the twenty-seventh of December, 1859, a paper was filed in the clerk's office, in form of a writ of error, but without a seal, and having no authenticated transcript annexed.

From this it appears that no writ of error has been certified with the transcript, and that the paper purporting to be a writ of error, which was filed in December last, being without seal, was void. Two terms of this court have intervened, not including the present term, since the transcript was certified, without a writ of error.

The cause must therefore be dismissed for these irregularities, without noticing others apparent on the record.

title: Overton v. Cheek/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1454

 SEVENTIETH C ONGRESS. SEss. II. CH. 368. 1929 . 1403 CHAP. 368 .-An Act Authorizing Llewellyn Evans, J. F. Hickey, and B. A. February 28,1929. Lewis, their heirs, legal representatives, and assigns, to construct, maintain, and [S . 58-,9.] operate a bridge and approaches thereto across Puget Sound, within the county [Public, No. 845 .] of Pierce, State of Washington, at or near a point commonly known as the Narrows. Be it enacted by the Senate and House of Representatives o f the United States o America in Congress assembled That in order to Pug et Sound. f Llewellyn Evans and promote interstate commerce, improve the postal service, and pro- others oasb` d ge ,,at vide for military and otherpurpos purposes, Llewel Llewelns,J J. F. Hic and B. A. Lewis, hereinafter called the grantees, and their heirs, legal representatives, and assigns, be, and they are hereby, author- ized to construct, maintain and operate a bridge and approaches the reto across P uget Sound, w ithin the coun ty of Pierce, State of Washington, at a point suitable to the interests of navigation, at or near a point commonly known as the Narrows, in accordance with construction. the provisions of the Act entitled "An Act to regulate the construc- Vol.34,p.84. tion of bridges over navigable waters," approved March 23 2 19 06, and subject to the conditions and limitations contained in this Act. SEC. 2 . A fter c omplet ion of such bride as de termin ed by the Acquisition author- ized, after mpletion, Secretary of War, either the State of Washington, or any manic- by Washington, etc. ipality or political subdivision thereof within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interest in real property necessary therefor, by purchase or by condemnation in Condemnatio n pro- acco rdan ce w ith the laws of such Sta te g over ning the acq uisi tion of private property for public purposes by condemnation or expropria- compensation if ac- tion. If at any time after the expiration of five years after the quired by c ondemna- completion of such bridge the same is acquired by condemnation or tio n , expropriation, the amount of damages or compensation to be allowed shall not include good will, going value, or prospective revenues or profits, but shall be limited to the sum of (1) the actual cost of Limit atio ns. constructing such bridge and its approaches, less a reasonable deduc- tion for actual depreciation in value ; (2) the actual cost of acquiring such interest in real property ; (3) actual financing and promotion cost, not to exceed 10 per centum of the sum of the cost of construct- ing the bridge and its approaches and acquiring such interest in real property ; and (4) actual expenditures for necessary improve- ments, less a reasonable deduction for actual depreciation in value. SEC. 3. If such bridge shall at any time be taken over or acquired ete, operations state, by the State of Washington, or by any municipality or other polit- ical subdivision or public agency thereof, under the provisions of section 2 of this Act, and if tolls are thereafter charged for the use thereof, the rates of tolls shall be so adjusted as to provide a fund eraions sinking tfund, sufficient to pay for the reasonable cost of maintaining, repairing, etc ƒ and operating the bridge and its approaches under eco nom ica l management, and to provide a sinking fund sufficient to amortize the amount paid therefor including reasonable interest and financ- ing cost, as soon as possible under reasonable charges, but within a period of not to exceed twenty years from the date of acquiring the same. After a sinking fund sufficient for such amortization Maintenance as fr ee shall have been so provided, such bridge shall thereafter be main- tzing costs, after amor- tained and operated free of tolls, or the rates of tolls shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper maintenance, repair, and operation of the bride and its approaches under economical management. An Record of f- tares and receipts . accurate record of hamount paid for acquiring the bridge and its app roac hes, the act ual expe ndit ures for mai ntai ning, re pair ing, and operating the same, and of the daily tolls collected, shall be kept and shall be available for the information of all persons interested. 5483 .5'-29--PT 1-92

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