text:
Goodrich v. City of Chicago

GOODRICH filed a libel in the District Court for the Northern District of Illinois, in a cause of damage, civil and maritime, against the City of Chicago, in personam.

The libel alleged that he was the owner of the steamer Huron; and that, on the 27th of March, 1857, while leaving the port of Chicago, the vessel ran against a sunken wreck in the Chicago River and was sunk; that, prior to this damage done, the city had been vested with exclusive jurisdiction over the river as a common public navigable river and highway by the State of Illinois, and with all the necessary means to provide funds for defraying the expenses incident thereto; that the city accepted the act of the legislature, and had ever since assumed the exclusive jurisdiction and control over the river harbor; that on the 20th day of May, 1856, the city had passed an ordinance for the removal, without delay, of any obstruction to free navigation, by which it was ordained that whenever there should be in the harbor any vessel insecurely fastened, adrift, sunken, &c., and which might require to be fastened, raised, &c., IT SHOULD BE THE DUTY of the harbor master to secure, raise, or remove such vessel WITHOUT DELAY; that in April, 1856, the city appointed one Ingalls harbor master under the said ordinance, and at the time of said damage he was such harbor master, vested with full control and management of the harbor, and that it was his duty, as agent of the said city, to remove all such obstructions to the free and safe navigation of said harbor; that in November, 1856, a schooner had been sunk near the mouth of the river, and became an obstruction to the safe navigation of it; that the city assumed the exclusive right to remove the same, and did, by their said harbor master, undertake and commence the removal of the said sunken wreck, by hitching thereto a steam-tug, and thereby attempting to raise and remove the same as they were bound to do, but did not complete the work, nor raise and remove the said wreck, as they had exclusively undertaken to do, but worked on the said sunken vessel, endeavoring to raise the same, and pulled several pieces of timber from the said vessel in the attempt to raise and remore her, but without raising or removing the same, did (as the libellants believed), loosen the said vessel in its bed; and negligently and carelessly left the vessel until the 29th of March, 1857, by means whereof during that time, by the action of the winds and currents, the wreck became drifted further into the channel of the river, and during all the time aforesaid was kept in the channel by the respondent under water, so that the same could not be seen; and without fixing or placing any buoy or signal to mark the place of the said sunken wreck; and that in consequence of the negligence of the city the said steamer Huron ran on to said sunken wreck and was sunk, in ignorance of its locality and without fault on her part, with damage to the libellants of $19,487.

The respondent having set up as defences, want of jurisdiction in the District Court; that the city was not liable on the facts of the case, and was not under any legal obligation to remove the sunken vessel, and that the accident had occurred through carelessness and unskilful conduct of the Huron, added to them by way of estoppel, the fact of a former judgment on demurrer to the declaration, in an action on the case between the same parties in the Supreme Court of Illinois.

The declaration in the suit thus set up as an estoppel alleged:

1. That under a statute of the State of Illinois of February 14, 1851, it became the duty of the city to remove and prevent all obstructions in the Chicago River and harbor, and that the city was authorized to levy and collect taxes for that purpose.

2. That the city assumed to discharge the duties imposed, and for that purpose levied and collected taxes, and controlled and regulated the said river and harbor, and that by means thereof and by the said State statute, it became and was its duty to remove and prevent all obstructions therein.

3. That the city undertook and entered unto the discharge of its duties and obligations by the passage of necessary ordinances, rules, and regulations, authorized by the act of 1851, whereby it became and was its duty to remove all obstructions, &c.

4. That the Chicago River and harbor was a public highway and nevigable stream, and that the city, not regarding its duty in the premises, on the 29th of March, 1857, and for five months prior thereto, had negligently and carelessly suffered and permitted the obstruction spoken of to remain in the river, and that the city, although knowing that the wreck was under water and out of sight, neglected to place any buoy or signal thereon to indicate its position.

5. That by reason of the premises, on or about the 29th day of March, 1857, the Huron in passing through the river was accidentally and without any want of care and skill on the part of the owners, or those in charge of her, run on or against the said sunken wreck.

And it appeared that, on a demurrer to this declaration, judgment had been rendered finally in the Supreme Court of the State for the city.

The District Court held judgment in the Supreme Court of the State no estoppel; and the case being deemed otherwise clear, gave judgment for the libellant.

On appeal to the Circuit Court, that court held, that the decision in the State court was 'an authoritative adjudication, denying that there is an obligation imposed by law on the City of Chicago to remove obstructions from its river and harbor,' and that it was thus decisive, against the libellants, of the present action. The decree of the District Court was accordingly reversed; the Circuit Court (DAVIS, J.) expressing, at the same time, the opinion 'that the facts of the case would sustain the claim made by the libellants, if the court was relieved from the embarrassment' of the decision referred to; and stating further 'that if this question was an open one in Illinois, the court should have no hesitation in holding that a legal obligation is imposed on the city to remove obstructions from the river; and that it is bound to make full redress to every person injured by reason of its failure to perform its duty; that the true interest of commerce, and the best interests of the city, would be promoted by such a construction, and that it is sanctioned by principle and authority.'

The case was now here on appeal from this decree by the Circuit Court reversing the former one of the District Court.

Messrs. Goodwin, Larned, and Goodwin, for the appellants, owners of the steamer:

There is no ground of liability set forth in any count in the declaration in the State court case, but that of 'the omission of the city to take action for the removal of the wreck.'

The case made by the declaration proceeds upon an absolute obligation on the part of the city to remove all obstructions, growing out of the power conferred, and the ordinances establishing the proper officers and providing the needful means for the exercise of that power; and the ground of action is rested wholly upon the omission of the city to exercise the power in the given case. There is no averment in the declaration, as there is pre-eminently in the libel, that the city ever undertook or assumed to remove the wreck, or entered upon the work of such removal; but, on the contrary, the declaration excludes the idea of such assumption of responsibility or undertaking on the part of the city by its positive allegation that the city neglected and refused to take any such action, but permitted the wreck to remain, and would not undertake its removal.

And the Supreme Court being called upon to decide, on general demurrer, as to whether such a declaration had set forth a legal ground of action against the city, decided that it did not, because the city were not bound to undertake the removal of any obstruction in the harbor, except they elected so to do; that it was matter of legal option with them whether they would or would not, in any given case, exercise the power so conferred; that the passage of ordinances and the providing of the proper officers and means to perform the work in such cases as they should elect to undertake it, did not impose any legal obligation to undertake any particular work; and therefore, notwithstanding all the allegations of the declaration respecting the charter, and the ordinances, and the appointment of harbor-master, were admitted, yet it did not follow that the city were bound to undertake the removal of this or any other obstruction; and so no sufficient cause of action was set forth in the declaration.

Now, giving to this decision full effect, it does not touch the case made by this libel. It decides that a case will not lie against the city for mere omission to act, for the mere non-assumption of the power conferred over the harbor by the charter, by neglecting to undertake to remove a particular obstruction.

The question of liability, in all cases where the city had elected to act under the power, and had entered upon and assumed the work, is therefore an open question, and this court is at liberty to decide such a case in conformity with their own views of the law and the facts.

It should be quite sufficient in a cause where the merits of the case seem confessedly with the plaintiff, and where sound reason and authority sustain his action, to show that the case made by the libel is not within the express point decided by the Supreme Court of Illinois; and this court should, perhaps, if necessary, be 'astute' to take the case out of that decision.

As a mere technical bar, the force of a judgment at law, when pleaded in admiralty, may be doubted on authority. In England, it has been held, by Dr. Lushington, in The Ann and Mary, that an action at common law for damages caused by a collision, will not affect the jurisdiction of the admiralty, and that the verdict of the jury, upon the facts of the case, will not be conclusive upon the judgment of the admiralty court. If this is so, the whole matter of the State decision falls to the ground.

Mr. Irwin, contra:

That a judgment, on general demurrer to a declaration, is a judgment on the merits, conclusive in a subsequent suit where the parties and the cause of action are the same, is reported law so far back as the time of Croke and Coke, and has been frequently decided with us.

And notwithstanding the dicta of Dr. Lushington to the contrary, in The Ann and Mary, there is no reason why the rule should not apply with as much force in courts of admiralty as in regard to any other.

In Taylor v. The Royal Saxon, it was held that the pendency of a replevin in a State court to settle the right of property in a vessel is a bar to a libel in the admiralty to settle the same right between the same persons, &c. Grier, J., there says:

title: Goodrich v. City of Chicago


text: Talk:Goodrich v. City of Chicago

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

title: Talk:Goodrich v. City of Chicago


text:
Goodrich v. City of Chicago/Opinion of the Court

'But it is denied that this is a case of concurrent jurisdiction because of the different form and course of proceedings in a court of admiralty. This proceeding, it is said, is in rem, that all the world is a party, while the action of replevin is a mere personal action of trespass; that, in the one case, the thing passes into possession of the court; in the other, the delivery is made by the officer, without any order or judgment of the court. These distinctions, though ingenious, do not constitute a difference or furnish an argument to justify the court of admiralty in disregarding the disposition made of this property by the law of Pennsylvania, whether it be temporary or final.'

'It is true that the court of admiralty, from the peculiarity of her process and modes of proceeding, is more competent to render speedy and exact justice to the parties than courts of common law (more especially in disputes between part-owners); but it cannot, on that assumption, disregard the disposition made of this property by the law of Pennsylvania, whether it be temporary or final.'

This reasoning, though applied by his honor to what was in effect a plea of lis pendens, applies with equal, if not greater force, to a plea of res adjudicata.

Now, in this case, the declaration shows that the same parties are attempting to litigate the same subject-matter, or points or questions in admiralty that were adjudicated and settled in the State court.

Look at the declaration as set out supra, p. 568, and at the libel as set out just before it, at pp. 566-7. It will be seen that the allegations in both are, in legal substance, the same. And the parties and subject-matter of both actions are undeniably the same. They are both actions to recover damages sustained by reason of an alleged obstruction in the Chicago River. The vessel injured is the same,-the Huron; the time and cause of injury are the same; the liability of the city is placed on the same ground in both actions, to wit, a duty imposed in both cases by the same act of the legislature, and the same ordinances of the city, and the neglect to perform or discharge it.

Nothing in the libel or in the facts in the case changes the cause of action from what it was in the State court. The liability of the city is based on its nonfeasance in both courts; and does not the Supreme Court of Illinois decide the questions raised in the case at bar against the appellants?

It matters not, here, and so far as the defence of an estoppel is concerned, whether the decision in the State court was right or wrong. It is sufficient that the parties appellant selected that tribunal to litigate their supposed grievances. They must be content with the result. If a party, when defeated in one tribunal, is permitted to take his chance in another, there can be no end to litigation; for if defeated in the second, he may in like manner resort to a third, and so run the chance of all the courts in the country. Litigation is harassing and vexatious enough to parties at best, but break down and destroy the doctrine of res adjudicata, and it would be intolerable, wholly.

Mr. Justice SWAYNE delivered the opinion of the court.

In the view which we have taken of the case, it will be necessary to consider but a single point.

The appellants filed their libel to recover damages for the sinking of their steamer Huron, in the Chicago River, near its mouth. The casualty was caused by the steamer running against a sunken wreck. The libel alleges that it was the duty of the city to have it removed, and that it was guilty of negligence in not having done so. It alleges further, that the city entered upon the work of removal, but abandoned it before the result was accomplished.

Among the defences set up by the answer of the respondent was, that of a final judgment in the Supreme Court of Illinois, upon a general demurrer to a declaration in an action at law by the appellants against the respondent for the same cause of action.

The court below sustained the defence, and upon this ground, and another not necessary to be stated, dismissed the libel.

The record of the action at law is found among the proofs in this case. Upon a careful examination of the declaration and of the libel, we are constrained to say, there is no such difference in the cases which they respectively make as can take this case out of the operation of the principles of res adjudicata.

Whatever the result might be here, if this obstacle were out of the way, we have no choice but to apply the law in this as in other cases.

DECREE AFFIRMED, WITH COSTS.


text: Talk:Goodrich v. City of Chicago/Opinion of the Court


text: The Pearl (72 U.S. 574)

title: The Pearl (72 U.S. 574)


text: Talk:The Pearl (72 U.S. 574)

title: Talk:The Pearl (72 U.S. 574)


text:
The Pearl (72 U.S. 574)/Opinion of the Court

APPEAL from the District Court of the United States for the Southern District of Florida, restoring, on payment by the claimants of expenses and costs, the steamer Pearl, captured for intent to break the blockade of our Southern coast, established during the late rebellion; the question being chiefly of fact.

Mr. Ashton, Assistant Attorney-General, for the United States, Mr. Marvin, contra, for the claimants.

The CHIEF JUSTICE, previously stating the case, delivered the opinion of the court.

The Pearl was captured on the 20th January, 1863, by the United States ship of war Tioga, between the Bahama banks and Nassau.

The papers found on board showed that she was a British vessel, belonging to one George Wigg, of Liverpool; that he became owner on the 24th of September, 1862; that one George M. Maxted was appointed master at Glasgow, where she was purchased, on the 25th of September; that one Matthew L. Irving succeeded him on the 13th of October, also at Glasgow; and that one William Jolly was appointed in his place, at Cork, on the 22d of November. Jolly was master at the time of capture.

She carried no cargo except ten bales of seamen's jackets and cloth, shipped by Wigg at Cork and consigned to H. Adderly & Co., at Nassau, to whom the vessel was also consigned. This firm has become well known in this court as largely engaged in the business of blockade-running.

Several of the seamen, examined in preparation for the primary hearing, concurred in representing the vessel as destined to the Rebel Confederacy.

One of them was present when the vessel was purchased and heard Wigg and Maxted negotiating for her. According to them, Maxted acted as principal rather than as subordinate, and was engaged about the same time in buying other vessels of the same class as the Pearl, of small size and light draft, and what was said impressed the witness with the belief that all of them were destined to trade with the Confederate ports.

Several other seamen made similar statements. It seemed to be a common understanding among them that the Pearl was to be engaged in running the blockade, and there was much talk about the practicability and probability of her getting into the Confederate ports, and especially the port of Charleston. 'It was notorious,' said one of them, 'in Glasgow and Cork, before and after the sailing of the Pearl, that she was engaged to run the blockade, and that she was bought and fitted and sailed for that especial purpose.'

One of the firemen stated that Maxted represented to him and his mates, as an inducement to ship on the Pearl, that they might reship on her or in some vessel in the Confederate service, with large pay, and have, as a bonus, the ten pounds return-money which was to be paid them on discharge at Nassau. The same witness stated that Maxted, after leaving the Pearl, took command of a screw steamer, the Thistle, from Liverpool for Nassau.

The testimony of the second officer of the Pearl was substantially to the same effect. He was engaged at Glasgow for the general management on board, by Maxted, shortly before she sailed; and after a fortnight or more, shipped as second officer. He understood the purchase by Wigg to be made for parties in the Confederate States.

The master and the first mate testified that they knew nothing of any destination of the ship beyond Nassau. Neither knew to whom the vessel belonged, except from the papers, but believed that she was owned by Wigg. All they knew of the cargo was that it was consigned to Adderly & Co.

The cause was heard upon the preparatory evidence on the sixth of May, and on the same day, and before any decree was pronounced, a motion for further proof was made, upon affidavits by Wigg, Maxted, and several of the seamen; and on the 25th of May it was 'ordered that the claimant of the ship be allowed to produce further evidence, by his own oath or otherwise, touching his interest therein and the use he intended, at the time of the capture, to make of the vessel after her arrival at Nassau; the trade or business he intended she should be engaged in, and for what purpose she was going to that port; and that the claimant of the goods have time to produce an affidavit of his right and title therein, and to produce such other proof of neutral ownership as he may be advised.'

No new evidence at all appears to have been taken under this order; but the affidavits used on the notice, and a Nassau newspaper containing two government notices, seem to have been admitted as further proof on the final hearing.

Some of the affiants were seamen who had been examined at Key West. They denied having made some statements contained in the depositions put into the cause by the prize commissioners; but they do not deny the conversations and understandings to which they then testified. The substance of their new affidavits was that the Pearl, at the time of her capture, was on a bona fide voyage to Nassau. The affidavits of the seamen, not before examined, were to the same effect. They are entitled to very little weight as further proof.

The affidavit of Wigg was positive to his ownership; to the non-existence of Confederate ownership; and to the allegation that the Pearl, at the time of her capture, was engaged in the bona fide prosecution of a lawful voyage from Great Britain to Nassau, and that he had no knowledge or belief that any cause existed which rendered her liable to capture.

But he said nothing at all on the most important point in respect to which he was allowed further proof, namely, what use he intended to make of the steamer after arrival in Nassau; and in what trade or business he intended she should be engaged; and for what purpose she was going to that port.

The affidavit of Maxted also asserted the sole ownership of Wigg; denied that Wigg was agent for the Confederate States or connected in business with any person residing in either of them; denied that he himself made any contract with any one to run the blockade, or had any conversation with any of the seamen in relation to shipping in any vessel to run the blockade; and concluded with an averment, that of his own knowledge the steamer was purchased by Wigg to carry mails for the British government between the West Indies and Cuba, under proposals offering five thousand pounds per annum for three years.

This affidavit, if entitled to credit, might repel the inference, warranted by the other evidence, that the Pearl was purchased and sailed with intent to break the blockade. But Maxted's own connection with the purchase of this and other vessels, and his own engagement in the suspicious commerce with Nassau, do not allow us to regard his evidence as of much value, especially in the absence of any satisfactory affidavit from Wigg himself.

It must be remarked, also, that the government notices for proposals, put in evidence for the claimant, apparently for the purpose of supporting the statement by Maxted, do not support it at all. They invite proposals for sailing, not for steam vessels, and relate to communication among the Bahama Islands, not to communication between Cuba and the West Indies.

On the whole, we are constrained to say that we perceive no reasonable ground for believing that the Pearl was not at the time of capture destined to employment in breaking the blockade. We are not satisfied that her voyage was to terminate at Nassau; but are satisfied, on the contrary, that she was destined, either immediately after touching at that port, or as soon as practicable after needed repairs, for one of the ports of the blockaded coast.

The vessel, therefore, in conformity with the principles recognized by us in several cases, must be condemned.

As to the ten bales of merchandise, the evidence showed ownership in Wigg, rather than any other person; but no claim was put in by him. They were claimed in behalf of Adderly & Co., by the captain; but, in his deposition, he disclaimed all knowledge of the ownership, except from the consignment. No affidavits of title or neutral ownership have been put in by Adderly & Co., under the notice obtained by the claimants, for further proof. This neglect cannot be construed otherwise than as an admission that they are not entitled to restitution.

A decree of condemnation, therefore, must pass against the merchandise as well as the ship.

DECREE ACCORDINGLY.


text: Talk:The Pearl (72 U.S. 574)/Opinion of the Court


text:
Page:The Confidence Man.djvu/203

Rh points at present invisible, with beauties at present dormant."

"Come, come, this talk is getting too horticultural and beautiful altogether. Cut it short, cut it short!"

"Respected sir," with a rustily martial sort of gesture, like a decayed corporal's, "when deploying into the field of discourse the vanguard of an important argument, much more in evolving the grand central forces of a new philosophy of boys, as I may say, surely you will kindly allow scope adequate to the movement in hand, small and humble in its way as that movement may be. Is it worth my while to go on, respected sir?"

"Yes, stop flunkying and go on."

Thus encouraged, again the philosopher with the brass-plate proceeded:

"Supposing, sir, that worthy gentleman (in such terms, to an applicant for service, we allude to some patron we chance to have in our eye), supposing, respected sir, that worthy gentleman, Adam, to have been dropped overnight in Eden, as a calf in the pasture; supposing that, sir—then how could even the learned serpent himself have foreknown that such a downy-chinned little innocent would eventually rival the goat in a beard? Sir, wise as the serpent was, that eventuality would have been entirely hidden from his wisdom."

"I don't know about that. The devil is very sagacious. To judge by the event, he appears to have understood man better even than the Being who made him."

title: Page:The Confidence Man.djvu/203


text:
Jones v. La Vallette

A JUDGMENT had been rendered in the Circuit Court of the United States for the Eastern District of Louisiana, in favor of La Vallette against Jones, in the ordinary action by petition and summons, upon a promissory note. The defendants below took an appeal, seeking to bring the case into this court in that way.

Mr. Janin now moved to dismiss the appeal, contending that appeal was not the proper form of bringing up the case.

Mr. Durant, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Jones v. La Vallette


text: Talk:Jones v. La Vallette

title: Talk:Jones v. La Vallette


text:
Jones v. La Vallette/Opinion of the Court

The Judiciary Act of 1789 gave appellate jurisdiction to this court by writ of error, and it was held that under that act no cause could be brought here by appeal.

The act of 1803 gave appellate jurisdiction by appeal 'from final judgments and decrees in cases of equity, of admiralty, and maritime jurisdiction, and of prize or no prize.' No other cases can be brought here in this mode, and the case in the record is of neither class. It must come here, if at all, upon writ of error.

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Jones v. La Vallette/Opinion of the Court


text: Packet Company v. Sickles (72 U.S. 580)

title: Packet Company v. Sickles (72 U.S. 580)


text: Talk:Packet Company v. Sickles (72 U.S. 580)


text:
Packet Company v. Sickles (72 U.S. 580)/Opinion of the Court

THIS was a suit brought in the Supreme Court (the former Circuit Court) of the District of Columbia to recover damages under a special contract set forth in the declaration.

The contract, in substance, was, that on the 18th of June, 1844, the plaintiffs below, Sickles & Cook, and the Washington, &c., Steam Packet Company, the defendants, agreed that Sickles & Cook should attach, for use, to a steamboat owned by the company, the Sickles cut-off, a certain patented contrivance which was designed to effect the saving of fuel in the working of steam engines; and that, in consideration thereof, if the said cut-off should effect a saving in the consumption of fuel, the company would use it on their boat during the continuance of the said patent, IF the said boat should last so long, and that they would, for the use of the cut-off, pay to the plaintiffs, weekly, three-fourths of the value of the fuel saved. The patent had, at the date of the alleged contract, yet twelve years to run. The declaration set forth further, that it was agreed between the parties that the saving of the fuel caused by the use of the said cut-off should be ascertained by taking two piles of wood of equal quantity and burning one pile without and the other with the use of the cut-off, and thus to ascertain how much longer the boat would run, under the same circumstances, with the use of the cut-off than without, and that the proportion of savings as agreed upon above should be paid by the defendants. It alleged finally, that this experiment had been fairly made, and showed a saving of fuel by the use of the cut-off of thirty-four per cent.

The plaintiffs accordingly claimed the value of three-fourths of the fuel thus saved, between certain dates specified.

The defendants pleaded the general issue.

On the trial the plaintiffs, to support the issue, gave in evidence the record of a former trial between the same parties on the same contract as alleged, for payments due when the writ in that case was issued, in which trial a verdict and judgment had been rendered in their favor.

The declaration in the record of this former trial contained four counts:

1. A special count on the contract, corresponding in all respects with that set out in the declaration in the present suit.

2. A common count for compensation for the use of the cut-off by the defendants on their boat before that time had and enjoyed, and for such an amount as it was reasonably worth.

3. A common count for money had and received; and

4. A special count on a contract in substance like the first, with the difference hereinafter stated: It recited that, in consideration the plaintiffs had before that time attached the said Sickles cut-off to the engine of the defendants' boat, and had agreed that they should have the use of it during the continuance of the patent-right, if the boat should last so long, they, the defendants, undertook and agreed to pay the plaintiffs three-fourths of the value of the fuel saved by the use of the cut-off; that a large quantity of the fuel, to wit, one thousand cords of wood, of the value of $2500, had been saved, yet the defendants, not regarding their promise, &c., have refused, &c. The difference between this and the first count consists mainly in the omission of any agreement to ascertain the saving of fuel by the experiment.

To the declaration in this former suit, whose record was thus offered in evidence, the defendants had pleaded the general issue.

It should be here mentioned that this suit had been in this court before. It was here in 1860. On a trial from the result of which the writ of error then came, a record of a former trial had also been offered in evidence; apparently the same offered in the suit to whose result the present writ was taken.

The record offered in that previous trial contained a declaration having two counts upon the contract, with the common counts, a plea of the general issue, a general verdict for the plaintiffs on the entire declaration, and a judgment on the first count; a count similar to the counts in the declaration in the suit then pending.

Besides this testimony of the contract, the plaintiffs proved on that previous trial the quantity of fuel used in running the boat, and relied upon the rates as settled to determine their demand, and insisted that the defendants were estopped to prove there was no such contract, or to disprove any one of the averments in the first count of the declaration in the former suit, or to show that no saving of the wood had been effected; or to show that the so-called experiment was not made pursuant to the contract, or was fraudulently made, and was not a true and genuine exponent of the capacity of the said cut-off; or to prove that the said verdict was in fact rendered upon all the testimony and allegations that were submitted to the jury, and was in point of fact rendered, as by the record it purported to have been, upon the issues generally, and not upon the first count specially.

The Circuit Court adopted these conclusions of the plaintiffs, and excluded the testimony offered by the defendants to prove these facts. On the matter coming here in 1860, by exceptions in that second suit, this court, in 24th Howard, remarked upon the exclusion of this testimony as follows:

'The record produced by the plaintiff showed that the first suit was brought apparently upon the same contract as the second, and that the existence and validity of that contract might have been litigated. But the verdict might have been rendered upon the entire declaration, and without special reference to the first count. It was competent to the defendants to show the state of facts that existed at the trial, with a view to ascertain what was the matter decided upon by the verdict of the jury. It may have been that there was no contest in reference to the fairness of the experiment or to its sufficiency to ascertain the premium to be paid for the use of the machine; or it may have been that the plaintiffs abandoned their special counts and recovered upon the general counts. The judgment rendered in that suit, while it remains in force, and for the purpose of maintaining its validity, is conclusive of all the facts properly pleaded by the plaintiffs; but when it is presented as testimony in another suit, the inquiry is competent whether the same issue has been tried and settled by it.'

Considering, therefore, that the Circuit Court had erred in holding the Packet Company estopped by the proceedings in the first suit from any inquiry in respect to the matters in issue, and actually tried in that cause, this court reversed the judgment given against it, and the case went down for trial a second time; the trial, namely, after which to present writ of error was taken.

On this new trial the plaintiffs called several of the jurors who had been empanelled in the former trial, to give evidence of the testimony then given, and also as to the matters in contest before the court on that trial; the purpose in introducing this extrinsic evidence having been to prove such facts as, in connection with the record, would show that the same contract was in controversy in the second suit, and had been conclusively adjudged in their favor. [Many of these jurors, it may be remarked, while stating the particular grounds on which they found the verdict, and speaking of a contract that was before them, did not all speak so definitely as to the terms of the contract as to make it easy to say whether they described such a one as was set forth in the first count, or such a one as was set forth in the last count.]

When the plaintiffs rested, the defendants offered a competent witness to prove that the only contract given in evidence on the former trial was by parol, and not reduced to writing; the purpose of this testimony having had obvious reference to a provision of the statute of frauds, in force in the District of Columbia; the words of the statute being: 'That no suit shall be brought to charge any person upon any agreement not to be performed in one year, unless there was some memorandum or note in writing of the agreement,' & c.

The evidence thus offered was objected to, and excluded by the court. The defendants offered to prove, further, that the contract was by parol, and to be performed at the time stated in the declaration; which testimony was also objected to, and excluded, except as to the latter branch. The questions growing out of this exclusion of evidence were now before this court on a bill of exceptions for review.

Two questions were, accordingly, raised here:

1. Whether the evidence as above mentioned was rightly excluded2. Whether the contract, which it was sought to show was in issue in the former suit, was now to be regarded as valid. This question being suggested, of course, by the above-quoted section of the statute of frauds.

Messrs. Carlisle and Davidge, for the plaintiff in error:

I. The court erred in excluding the testimony:

1. Because the fact that the only evidence offered at the trial alleged to be an estoppel was parol evidence, was a fact proper for the consideration of the jury in weighing the evidence offered by the plaintiffs to show what the prior jury found.

2. Because the estopped relied on was not an estoppel of record, in the strict sense, but was to be applied by the jury to the subject-matter by parol evidence.

As the case was tried, the court assumed the absolute truth of the evidence offered by the plaintiffs, and refused to submit that evidence to the jury, or to allow the defendants to offer any evidence based on the hypothesis that the estoppel might not be found as set up. In other words, the court undertook to determine the weight of the parol evidence.

3. Because the evidence, if admitted, showed that the testimony submitted at the former trial had relation only to the common counts. Evidence of a parol contract could not support the first count of the declaration in the former suit; nor could such evidence be objected to, as it was admissible as tending to show the measure of damages under the common counts.

We assert that if, in fact, the prior jury found only a parol contract, we are not estopped from denying its validity in law in the present case. We are estopped only from denying the particular points of facts found, to wit, a parol promise.

The fact, if true, that we did not, at the former trial, make objection on this ground was, at most, but an admission for the purposes of that case. It was an admission of law, which does not estop in any subsequent action. Questions of law are not submitted to, or found by a jury, but only the naked issue of facts.

We maintain that the contract being in parol merely was void in law, since it was not to be performed within one year.

Taking it for granted, for the present, that it was void, cases show that courts go far in searching out the particular point of fact-the punctum facti-decided by the prior jury, and in holding such point to be set aside and different from the one at issue in the case on trial.

Thus, in Carter v. James, a case in the English Exchequer, the defendant had given a bond, secured by mortgage for £600. The mortgage contained a covenant to pay the debts. The plaintiff sued upon the bond, but the defendant set up a usurious agreement, and averred that the bond was given 'in pursuance of that agreement,' and so was void. The plaintiff replied that it was not given in pursuance of that agreement, and upon this issue was joined and a verdict found for the defendant. Afterwards, the plaintiff sued upon the covenants contained in the mortgage, it being confessedly for the same debt. The defendant pleaded the former verdict by way of estoppel, but, on demurrer, the plea was held bad, on the ground that the point of fact found in the former case was no answer in this; that point being that the bond was given in pursuance of the complainant's agreement, whereas in the present case the point was whether the covenant was so given, and whether the agreement itself was usurious.

The covenant was an agreement to pay the same debts as were named in the bond; and if the bond was given in pursuance of the complainant's agreement, the inference is irresistible that the covenant was so also; yet the court made a distinction.

In the prior case the plaintiff had not denied the fact of a usurious agreement, but had by his pleading virtually admitted it for the purposes of that case. Held (Alderson, B.) that his so admitting did not estop him on that point, as it was one on which the jury did not pass.

So in the present case, we deny that there was a written contract; we are not estopped from doing so by our not having denied it at the former trial, nor by the jury finding that there was a parol contract.

In Burlen v. Shannon, a prior judgment had been obtained against the defendant for the board, for a certain period, of his wife, who had left his house, she being justified in doing so, it was asserted, on the ground, first, of his cruelty, and, second, of his consent. On a suit to recover board for a subsequent period, the ground then being that the wife was absent from cruelty (not his consent), the former verdict was set up as an estoppel. But its being so was denied on the ground that it was dubious whether the jury found cruelty, and that it must be left to the present jury to decide, from the evidence produced to them, what particular fact (of the two alleged) the former jury found.

In Sawyer v. Woodbury, in the same court, a plaintiff had brought an action of covenant, alleging several distinct breaches. The jury found a general verdict in his favor. In a subsequent suit he set up one of those breaches, and claimed the former verdict as an estoppel. But the court held that evidence might be adduced to enable the jury to decide which breach it was the prior jury found.

II. The alleged contract, if merely parol, was void.

The statute avoids all contracts not 'to be' performed within one year-meaning acts agreed not to be so performed; acts agreed to be done beyond the end of one year. Now, the acts stipulated to be done by the defendant in this case were, as alleged, to pay the money at certain intervals throughout the term of twelve years. In order to perform the contracts, the defendant must make these payments.

In case the boat ceased to exist during that term, the defendants would then, indeed, be excused from paying afterwards; but this would be a defeasance, as if by a condition subsequent, not a performance of the contract.

Had the words, 'if the boat shall last so long,' not been inserted, there can be no question that the alleged agreement would be void. Can these words cause a difference? The agreement was, not to pay so long as the boat should last. If that had been the agreement, then it might possibly have been fully performed in one year. But the agreement was, to pay for twelve years, though it was provided that such payments for that period might be excused and dispensed with, if the boat should previously cease to exist.

The fact that further performance may be thus dispensed with will not take the case out of the statute.

Mr. Bradley, contra.

I. By the testimony of the former jurors, it appears that the contract specially declared on in the first two counts of the declaration in the second cause-the experiment provided for in that contract; the result of that experiment, and the consequent saving of fuel to the defendants-were the main issues in that cause, and were found by that jury.

Now, it will thus be seen that there are only two questions:

1. Was the verdict and judgment on the former trial conclusive on all the questions directly in issue on that trial, upon the proof offered by the plaintiffs, if believed by the jury?

2. Could the defendants go behind that verdict and judgment while the plaintiffs confined themselves to proof of what was then in issue and tried by the jury?

As to the first, we submit that it was, and that the court below was right in rejecting all evidence tending to show that no such contract had been made, or that the contract was not in writing, or that the experiment was insufficient to establish the rate of saving, or that it had been unfairly or fraudulently conducted. All these matters were involved in the issues raised by the two counts in the declaration and the pleas in the former action, and passed upon by the jury, as shown by the witnesses.

The other question may be more novel; but, according to general principles of law, and according to the settled law of Maryland, by which it is to be determined, is free from difficulty.

II. As to the statute of frauds.

If the contract was within the statute, the fact whether it was in writing or not was directly in issue in the first suit. If the defendant then waived the defence (if this was one) arising from the contract's being but in parol, as he might, he should have offered evidence of that fact on the second trial. He did not make such offer. None of the bills of exceptions assert that it was not set up in that action. If it had been, and if it was a defence, the suit could not have been sustained; which it was completely.

The authorities from Peter v. Compton, reported by Skinner, to this day are unmerous to show that the case was not within the statute.

What was this contract? It was one to put a machine on defendant's boat, to be paid for by a share of the savings of fuel caused by its use, to be ascertained as soon as the machine was in working order: that share to be paid for, from time to time, whenever demanded. The contract might run on to the expiration of the patent, or it might be terminated the next day. There is nothing from which it can be inferred that the parties understood it could not be performed within the year. It would have been completed by the loss or destruction of the boat at any time during the year, a matter in terms provided for.

There is a distinction between a performance which shall complete, and one which may defeat the contract within the year. If it can be completed within the year (as this one might have been), it is not brought within the statute, by the fact that it may run on for many years.

Mr. Justice NELSON delivered the opinion of the court.

When this case, or one of the class, was formerly before this court, in which the record of the former recovery was in evidence, it was claimed that, without any extrinsic evidence, it concluded the defendants from again denying the existence of the contract, or from disproving any other of the averments in the first count of the declaration, and it had been so ruled by the court below.

This court, when the case came up on error, agreed that the record was properly admitted as evidence of the former trial between the parties, but held the pleadings, verdict, and judgment did not furnish the necessary proof to show that the contract in controversy in the suit then on trial had been before agitated, and conclusively adjudicated in the former trial in behalf of the plaintiffs; and that the verdict had been rendered upon the entire declaration, and without special reference to the first count.

The record, with the pleadings and verdict, furnished evidence that the same matters might have been litigated on that trial, and afforded ground for the introduction of extrinsic evidence to show that the same contract had been in contest before the court, and had been referred to the decision of the jury, but nothing more. For this reason the judgment was reversed, and a new trial ordered.

Taking this view of the application and effect of the record of the former trial, the plaintiffs introduced in this case extrinsic evidence, and have endeavored to prove the necessary facts which, in connection with the record, would lead to the conclusion that the same contract was in controversy in the former suit, and had been conclusively adjudged in their favor. But this extrinsic evidence was open to be controverted on the poart of the defendants. As the record itself did not furnish evidence of the finding of the existence or validity of the contract in the former suit, and hence extrinsic proof was required to this effect, it was of course competent for the defendants to deny and disprove both, as in so doing they did not impeach the record, but only sought to disprove the evidence introduced by the plaintiffs.

The rejection of this evidence, therefore, offered by the defendants on the trial, was error. Whether or not the contract, as proved on the former trial, rested in parol or was in writing, was material. If in writing, there could be no controversy in fact in respect to its terms or stipulations; and its construction and legal effect belonged to the court to determine. If it rested in parol, its terms and conditions depended upon the extrinsic proof, and hence the materiality of the first question put to the witness, as preliminary to further proof. It was important to settle the terms of the contract in evidence on the former trial, in order to determine whether it was the same as the one then in controversy, and, resting in parol, these terms depended very much upon the testimony in the case.

There is another view in this branch of the case that must be noticed. As we have seen, the declaration in the former suit contained four counts, to which the general issue was pleaded, and a general verdict for the plaintiffs. The first and fourth counts set up two different special contracts relating to the same subject-matters, and which constituted the cause of action between the parties. Now, the extrinsic evidence furnished on the part of the plaintiffs as to the former trial, and the grounds of proceeding therein, tended to prove eigher court, and was sufficient to have justified the jury in finding either contract. These contracts, as thus set forth, were identical, with the exception of the agreement to settle the proportion of fuel saved by an experiment, which had been made, and resulted in the saving, by the use of the cut-off, of three-fourths of the fuel as used by the old throttle valve. The jury, therefore, might have found in favor of the plaintiffs on the contract as set forth in the fourth count, even if they disbelieved the proof of the agreement as to the mode of settling the proportion of fuel saved. Many of the jurors called and examined speak of a contract between the parties in respect to the use of the Sickles cut-off, but so indefinitely it is impossible to determine whether the testimony related to the one set out in first or fourth counts, and no attempt was made to distinguish between the one or the other on the trial.

As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, when the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined-that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact; but, even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.

In view of this doctrine, it is quite clear that the record of the former trial, together with the extrinsic proofs, failed to show that the contract in controversy in the present suit was necessarily determined in the former in behalf of the plaintiffs. We agree, if the declaration had contained but the first count, which had set out the contract in controversy in the present suit, the effect of the judgment would have been different. The verdict of the jury, then, could not have taken place without finding the existence and validity of the contract. But, as we have already shown, the record and evidence on the former trial are different, and tend to a different conclusion.

Some of the jurors in the former trial were permitted to testify as to the particular ground upon which they found the verdict. This testimony was not objected to, and therefore is not available as error here. But it is proper to say, that the secret deliberations of the jury, or grounds of their proceedings while engaged in making up their verdict, are not competent or admissible evidence of the issues or finding. The jurors oftentimes, though they may concur in the result, differ as to the grounds or reasons upon which they arrive at it.

The evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their consideration, and then the record furnishes the only proper proof of the verdict.

There is another suggestion, also, it may be proper to make, growing out of the rule, now very general both in the Federal and State courts, to admit the record of a former trial as evidence to conclude a party from agitating the same matters in a second suit, and that is where the extrinsic proof of the identity of the cause of action is such that the court must submit the question to the jury as a matter of fact; any other matters in defence or support of the action, as the case may be, should be admitted on the trial, under proper instructions. For, if the jury should find against the conclusiveness of the former trial, then this additional evidence would not only be material, but constitute the whole of the proof on which the cause of action or defence must rest. If the extrinsic evidence should be so conclusive that the court could properly hold the record to be conclusive, the trial would of course be at an end, so far as the matters embraced therein were identical with those in controversy. But, if not so conclusive, and the question must be submitted to the jury, then the record and evidence in respect to the former trial would constitute but one of the grounds relied on before the jury in support of the cause of action, or in defence, and be entirely consistent with any other grounds for the maintenance or defence of the suit in the possession of the parties. This must be so, for the reason that if the trial should, in the case contemplated, be confirned to the issue growing out of the former trial, and the jury should find against its conclusiveness, nothing would be determined. The former trial, therefore, when its conclusiveness must be submitted to the jury, can be regarded only as a preliminary question, and the merits, independently of this question, should be heard and tried.

As the case must go down for another trial, and as the validity of the contract set out in the declaration may be involved in that trial, it is proper that we should express our opinion upon it, if, as it was offered to be proved, the contract was not in writing, but rested in parol.

We have referred particularly to the contract in the fore part of this opinion. The question raised is, whether or not it is within the statute of frauds, and therefore void. The law in this district, it is admitted, is a copy of the English statute on the subject.

The patent had some twelve years to run after the date of this contract, which was in June, 1844.

The words of the statute are: 'That no suit shall be brought to charge any person upon any agreement that was not to be performed in one year, unless there was some memorandum or note in writing of the agreement,' &c. Now, the substance of the contract is, that the defendants are to pay in money a certain proportion of the ascertained value of the fuel saved at stated intervals throughout the period of twelve years, if the boat to which the cut-off is attached should last so long.

The statute applies to contracts not wholly to be performed within the year.

It is insisted, however, that this contract is not within it, because it may, be the happening of a certain event,-the loss or destruction of the boat,-terminate within the year. The answer is, that the possibility of defeasance does not make it the less a contract not to be performed within the year.

In Birch v. The Earl of Liverpool, a contract for hire of a coach for five years, for a stipulated price per year, was held to be within the statute, although determinable by either party at any time within that period.

The same principle was again held in Dobson and Another v. Espie. That case was the hiring of a traveller for more than a year, subject to a determination by three months' notice. Pollock, C. B., in delivering his opinion, stated that the object of the enactment was to prevent contracts not to be performed within the year from being vouched by parol evidence, when at a future period any question might arise as to their terms. No doubt, he further observes, formerly it was the practice to construe not only penal statutes, but statutes which interfered with the common law, as strictly as possible; but, in my opinion, that is not the proper course of proceeding. Alderson, B., observed: 'The very circumstance that the contract exceeds the year, brings it within the statute. If it were not so, contracts for any number of years might be made by parol, provided they contained a defeasance, which might come into operation before the end of the first year.'

We might refer to many other cases arising upon this statute. They are numerous, and not always consistent, for the reason, probably, given by Pollock, C. B., that the courts at first construed the enactment as strictly as possible, as it interfered with the common law. We think the construction given in the cases referred to is sound, and adopt it. The result is, that the contract is question is void, not being in writing. It is a contract not to be performed within the year, subject to a defeasance by the happening of a certain event, which might or might not occur within that time. All the mischiefs which the statute was intended to remedy apply with full force to it.

VENIRE DE NOVO.


text: Talk:Packet Company v. Sickles (72 U.S. 580)/Opinion of the Court


text: De Haro v. United States

title: De Haro v. United States


text: Talk:De Haro v. United States

title: Talk:De Haro v. United States