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Town of Martinton v. Fairbanks/Opinion of the Court

Two actions of assumpsit were brought by Fairbanks, the defendant in error, against the town of Martinton, the plaintiff in error. One action was brought upon what the declaration alleges to be 'certain instruments in writing, called promissory notes or bonds or railroad bonds,' made and issued by the town. They were not under seal, and were payable to bearer. The other was based on the coupons or interest warrants, also not under seal, which had belonged to and had been detached from the said bonds. The declaration in both cases was in the form used in the action of assumpsit. The plea in both cases was the general issue. The two suits were, by the agreement of the parties and consent of the court, consolidated and tried together. The parties filed with the clerk a stipulation in writing by which they waived a trial by jury. The causes were thereupon tried by the court as one case, and its action was thus stated upon the record: 'After hearing the evidence, the court finds the issue for the plaintiff, and assesses his damages at eleven thousand two hundred and nine dollars.' Upon this finding the court entered judgment for the plaintiff for the damages so assessed. During the trial a bill of exceptions was taken which simply set out all the evidence in the case, and closed as follows: 'Which was all the evidence offered in said causes; on which evidence the court found for the plaintiff in the sum of $11,209, and entered judgment accordingly; to all of which said defendant then and there excepted. And, as said facts do not appear of record, this bill of exceptions is prepared, and we ask that the judge may sign and seal the same, and it is done accordingly.'

There was no demurrer to the declaration or other exception to the sufficiency of the pleadings, no exception to the rulings of the court in the progress of the trial, in the admission or exclusion of evidence, or otherwise, no request for a ruling upon the legal sufficiency or effect of the whole evidence and there was no motion in arrest of judgment. The only matter presented by the bill of exceptions which this court is asked to review arises upon the exception to the general finding by the court for the plaintiff upon the evidence adduced at the trial. The defendant in error insists that, upon this state of the record, no question of law is presented which the court here can review. We think this contention is well founded. The provisions of the acts of congress which relate to the trial of issues of fact by the court are found in section 22 of the act of September 24, 1789, (1 St. 73, c. 20,) 'An act to establish the judicial courts of the United States,' and in section 4 of the act of March 3, 1865, (13 St. 500, c. 86,) 'An act regulating proceedings in criminal cases, and for other purposes.' The provision in the act of 1789 is reproduced in section 1011 of the Revised Statutes, as follows: 'There shall be no reversal in the supreme court or in any circuit court upon a writ of error * *  * for any error of fact.' The provisions of the act of 1865 are reproduced in sections 649 and 700 of the Revised Statutes, as follows: Sec. 649. 'Issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of a jury whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.' Sec. 700. 'When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the supreme court upon writ of error or upon appeal, and, when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment.'

The provision of section 1011, Revised Statutes, continues in force and forbids a reversal of the judgment of the circuit court for any error of fact. Upon the issues of fact raised by the pleadings in this case there was a general finding for the plaintiff. The defendant contends that the evidence submitted to the court did not justify this general finding. But, if the finding depends upon the weighing of conflicting evidence, it was a decision on the facts, the revision of which is forbidden to this court by section 1011. If the question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he should have presented that question, by a request for a definite ruling upon that point. Sections 649 and 700 were first fully construed by this court in Norris v. Jackson, 9 Wall. 125. The court, in that case speaking by Mr. Justice MILLER, laid down the following propositions: '(1) If the verdict be a general verdict, only such rulings of the court in the progress of the trial can be reviewed as are presented by bill of exceptions, or are presented by the pleadings; (2) in such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a jury trial; (3) if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict which raises the legal propositions, or they must present to the court their propositions of law and require the court to rule on them; (4) objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.' These propositions have been persistingly adhered to by this court. Thus, in Miller v. ''Life Ins. Co.'' 12 Wall. 298, it was said: 'The finding of the court, if general, cannot be reviewed in this court by bill of exceptions or in any other manner.'

In Insurance Co. v. Folsom, 18 Wall. 237, the court said: 'When the finding is general the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial. * *  * When a case is tried by the court without a jury a bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial.' So in Cooper v. Omohundro, 19 Wall. 65, this court, affirming the case last cited, held that 'when issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review * *  * except the rulings of the court in the progress of the trial, and the phrase 'rulings of the court in the progress of the trial' does not include the general finding of the circuit court, nor the conclusions of the circuit court embodied in such general finding.' See, also, Town of Ohio v. Marcy, 18 Wall. 552; Insurance Co. v. Sea, 21 Wall. 158; Jennisons v. Leonard, Id. 302; Tyng v. Grinnell, 92 U.S. 467; The Abbottsford, 98 U.S. 440; Otoe Co. v. Baldwin, 111 U.S. 1; S.C.. 4 SUP. CT. REP. 265.

The proposition that the general finding of the court in this case is open to review is in direct opposition to the rulings of the court in the cases cited. The plaintiff in error seeks to make the question whether the evidence set out in the bill of exceptions justified the finding by the court for the plaintiff of the issue of fact raised by the pleadings. This is, in defiance of the decision of this court that it cannot be done, an attempt upon a general finding to bring up the whole testimony for review by a bill of exceptions.

The theory of the plaintiff in error seems to be that the general finding in this case, like a general verdict, includes questions of both law and fact, and that, by excepting to the general finding, he excepts to such conclusions of law as the general finding implies; but section 649, Rev. St., provides that the finding of the court, whether general or special, shall have the same effect as the verdict of a jury. The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. Norris v. Jackson, ubi supra. But the plaintiff in error has taken no such exception. By excepting to the general finding of the court, it is in the same position as if it had submitted its case to the jury, and, without any exceptions taken during the course of the trial, had, upon a return of the general verdict for the plaintiff, embodied in a bill of exceptions all the evidence, and then excepted to the verdict because the evidence did not support it.

The provision of the statute, that the finding of the court shall have the same effect as the verdict of a jury, cuts off the right of review in this case; for the seventh amendment to the constitution of the United States declares that 'no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.' The only methods known to the common law for the re-examination of the facts found by a jury are either by a new trial granted by the court in which the issue had been tried, or by the award of a venire facias de novo by the appellate court for some error of law. Insurance Co. v. Folsom, ubi supra. The court below having made a general finding, which by the statute has the same effect as the verdict of a jury, the plaintiff in error can resort to no other means of redress than those open to it had the case been tried by a jury and a general verdict rendered.

But the very question now under discussion was decided by this court adversely to the views of the plaintiff in error in the case of Coddington v. Richardson, 10 Wall. 516. In that case a jury was waived under the act of March 3, 1865, by stipulation in writing, 'and all just and legal objections and exceptions which might be made were reserved by each party.' The court found the issue for the plaintiff, and assessed his damages at $5,000. The defendant moved for a new trial, but his motion was overruled by the court, and judgment was entered on the finding against the defendant. He took a bill of exceptions, which set out all the evidence and showed that he excepted to the rulings of the court in finding the issue for the plaintiff, in assessing the plaintiff's damages, in overruling the motion for a new trial, and in rendering judgment. No exceptions were taken during the course of the trial. Upon this state of the record this court said: 'There is no question of law upon the pleadings or the trial. Those attempted to be raised refer to the evidence as embodied in the record, but which, on a trial of the facts before the court, a jury being waived, we do not look into. We look into them only when found by the court.' The statute under consideration could have no other reasonable construction. Prior to the enactment of the act of March 3, 1865, it was held by this court that 'where the case is submitted to the judge to find the facts without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment on the law,' (Weems v. George, 13 How. 190;) and that 'no exception can be taken where there is no jury, and where the question of law is decided in delivering the final judgment of the court.' U.S. v. King, 7 How. 853. See, also, Craig v. State, 4 Pet. 427. The fourth section of the act of March 3, 1865, was passed to allow the parties, where, a jury being waived, the cause was tried by the court, a review of such rulings of the court in the progress of the trial as were excepted to at the time, and duly presented by bill of exceptions, and also a review of the judgment of the court upon the question whether the facts specially found by the court were sufficient to support its judgment. In other respects the old law remained unchanged. In the present case the bill of exceptions presents no ruling of the court made in the progress of the trial, and there is no special finding of facts. The general finding is conclusive of the issues of fact against the plaintiff in error, and there is no question of law presented by the record of which the court can take cognizance. It follows that the judgment of the circuit court must be affirmed, and it is so ordered.


text: Talk:Town of Martinton v. Fairbanks/Opinion of the Court

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text:
Streeper v. Victor Sewing-Machine Company

John R. McBride and J. G. Sutherland, for appellants.

''Chas. W. Bennett'', for appellee.

BLATCHFORD, J.


text: Talk:Streeper v. Victor Sewing-Machine Company


text:
Streeper v. Victor Sewing-Machine Company/Opinion of the Court

This suit was brought in the district court of the Third judicial district of the territory of Utah, on the thirteenth of June, 1879, by the Victor Sewing-Machine Company, against two persons named Crockwell and Bassett, and two others named Streeper and Murphy. On the twenty-eighth of June, 1875, the company, of one part, and Crockwell & Bassett, of the other, entered into a written agreement, whereby the former was: (1) To deliver sewing-machines to the latter, as consignees, at Chicago, on their order. (2) The latter to sell them in Utah territory, and, if possible, for cash; all promissory notes taken to be guarantied by the latter and delivered to the former; indorsement of the notes by the latter before such delivery to be such guaranty; all notes taken to be payable to the order of the former, not more than 12 months from date of sale. (3) The latter to sell all consigned machines and remit for them within four months from date of shipment; on failure to sell and remit, the former, after the four months, to be at liberty to charge the latter with all machines consigned four months, and not settled for, at their retail price, less 40 per cent., and such amounts to be immediately due on demand. (4) The latter to report every week machines on hand, and those sold, with terms of sale, and remit the proceeds of sale. (5) On report, and remittance, and approval, the former to credit the latter as follows: On a cash remittance of one-half of the retail price of machines sold, 50 per cent. of their retail price; on sales for notes running not more than six months from sale, 45 per cent. of such retail price; on sales for notes running more than six and not more than nine months from sale, 40 per cent. of such retail price; on sales for notes running more than nine and not more than twelve months from sale, 35 per cent. of such retail price; the latter to be charged with the difference between the amounts remitted and the retail prices reported, and to remit such an amount as will equal the retail price of the machine reported sold, (less said commissions,) with 5 per cent. of the retail price of machines sold for notes, such 5 per cent. to remain with the former till the termination of the contract, and the payment of all notes taken under it, and, after deducting therefrom the cost of collecting the notes, and expenses of settling the contract, the former to pay to the latter such part of the 5 per cnet. as should be due to them. (6) The former to sell parts of their machines at 40 per cent. discount from list prices, and attachments at the lowest wholesale rates, both to be settled for with cash every 30 days, unless time should be agreed for, when 20 per cent. should be added to regular cash prices. (7) The former to be at liberty to terminate the contract, and retake their property at any time, charging the latter for loss of or damage to machines; the latter to have the right to take the machines at the retail price, as if new, less 40 per cent.; the latter to be sole agents for certain counties in Utah while satisfactorily performing the contract. (8) The latter to pay a monthly rent for each wagon furnished by the former; the former to have the right to make, on notice, certain variations in the time of the notes; the latter to be at liberty, for such machines as they shall dispose of during each month, otherwise than for cash or note, to give their personal notes, on an average of six months' time, at the retail price of the machines, less 40 per cent., or their personal notes on an average of nine months' time, at the retail price of the machines, less 35 per cent.; the former to have the right to terminate and renew this last provision at their election.

On the third of July, 1875, the four defendants executed, on the back of said agreement, a joint and several bond, under seal, to the plaintiff, in the penalty of $3,000, with the following condition: 'The condition of this obligation is such, that if the above-bounden George Wallace Crockwell and Charles Henry Bassett, Jr., shall pay unto said Victor Sewing-Machine Company all moneys due, or which shall become due to said Victor Sewing-Machine Company, under or pursuant to the within contract, or which shall arise therefrom, whether by book-accounts, notes, renewals or extensions of notes, or accounts, acceptances, indorsements, or otherwise, hereby waiving presentment for payment, notice of non-payment, protest or notice of protest, and diligence, upon all notes now or hereafter executed, indorsed, transferred, guarantied, assigned, and shall well and truly keep and perform, in all respects, according to its true intent and meaning, the contract or agreement to which this obligation is attached, executed between the said Victor Sewing-Machine Company and G. W. Crockwell and C. H. Bassett, Jr., dated at Salt Lake City, the twenty-eighth day of June, 1875, then this obligation to be void; otherwise, to remain in full force and virtue. But said contract may be varied or modified by the mutual agreement of said Sewing-Machine Company and said G. W. Crockwell and C. H. Bassett, Jr., as to the manner of carrying on said business, or as to the time on which notes taken shall be drawn, or as to the compensation to be paid to said G. W. Crockwell and C. H. Bassett, Jr., or as to the period at which said G. W. Crockwell and C. H. Bassett, Jr., shall report to said company for the machines they may sell, or as to the territory on which said machines shall be shipped or sold, or as to the place from which said machines shall be shipped, and such changes and modifications, or variations, shall in nowise affect or impair our liability on this bond.'

This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hoec verba the agreement and the bond, and alleges that the defendants failed to perform the condition of the bond that Crockwell & Bassett should perform the agreement, in that, (after reciting the provisions of clauses four and five of the agreement,) between July 3, 1875, and February 10, 1876, the plaintiff, at the request of Crockwell & Bassett, consigned to them, under the agreement, divers sewing-machines, which they sold before 1878, but they did not remit the proceeds, or the part to which the plaintiff was entitled, to the amount of $146.82, 'a detailed and itemized account of which said sales, showing the machines received from plaintiff and sold by said Crockwell & Bassett, and the amounts remitted, with the proper credits thereon, and the amounts due and not remitted, as well as the balance thereon now due plaintiff, is hereto attached marked Exhibit A, and made a part of this complaint.' Exhibit A is a commission account, Crockwell & Bassett with the company, containing sales reported with prices, and notes received with dates, times, and amounts, and in which Crockwell & Bassett are debited with moneys retained by them, and rent of wagon, and collection charges, and a machine consigned over four months, and commission before allowed and now charged back on a machine returned, and are credited with their commissions, and the amounts of the notes taken for the returned machine, showing a balance of $146.82 due to the plaintiff.

The complaint further alleges that the defendants failed to perform the condition of the bond that Crockwell & Bassett should pay to the plaintiff all moneys due or to become due to it under the agreement, and should perform the agreement, in that the plaintiff, between July 3, 1875, and February, 1876, under clause 6 of the agreement, at the request of Crockwell & Bassett, consigned to them parts of machines at 40 per cent. discount from list prices, and attachments at the lowest wholesale rates, to be settled for in cash by them every 30 days, unless time was agreed for, when 20 per cent. was to be added to regular cash prices; but Crockwell & Bassett did not settle therefor with cash in 30 days, and had not paid therefor; that the money which, by clause 6, they were required to pay to the plaintiff, amounted to $87.97; and that 'a detailed and itemized account, showing the parts of machines and attachments so furnished Crockwell & Bassett, and the amounts paid plaintiff therefor, and showing the amounts which should have been, but were not, paid plaintiff by defendants Crockwell & Bassett, with the balance now due plaintiff by Crockwell & Bassett, is hereto attached, marked 'Exhibit B,' and made a part of this complaint.' Exhibit B is an attachment account, by items, debiting Crockwell & Bassett with articles furnished, and giving them credits, resulting in a balance of $87.97 due the plaintiff.

The complaint further alleges that the defendants failed to perform the condition of the bond that Crockwell & Bassett should pay to the plaintiff all moneys due, or which should become due, to it, under the agreement, or which should arise therefrom, and should perform the agreement, in that the plaintiff, between July 3, 1875, and February, 1876, under the agreement and bond, at the request of Crockwell & Bassett, consigned to them sewing-machines, which they sold after July 3, 1875, and before April, 1876; that, under the bond and clause 8 of the agreement, Crockwell & Bassett, between the dates named, gave to the plaintiff their personal promissory notes for the price of the machines, and at the rates for the machines, mentioned in the agreement; and that 'a list and description of said notes is herewith filed, marked 'Exhibit C,' and made a part of this complaint.' Exhibit C shows the date of each note, the time of its maturity, that all the notes were made by Crockwell & Bassett, and payable to the plaintiff, and the amount of each note, or the balance due thereon, exclusive of interest. The complaint alleges that the whole amount of them is $1,766.10, to which is to be added $609.93, for interest on them, and $237.60, for attorney's fees for collection, making in all, $2,613.63, and that Crockwell & Bassett have failed to pay that sum, and owe it to the plaintiff.

The complaint further alleges that the defendants failed to perform the condition of the bond that Crockwell & Bassett should pay to the plaintiff all moneys due, or which should become due, to it, under the agreement, or which should arise therefrom, and should perform the agreement, in this, that, between July 3, 1875, and February 10, 1876, the plaintiff, under the bond and agreement, and at the request of Crockwell & Bassett, consigned to them sewing-machines, which, prior to the last date, they sold, and took therefor the promissory notes of the vendees, payable to the order of the plaintiff, which notes Crockwell & Bassett indorsed and guarantied, and delivered to the plaintiff, this being done under clause 2 of the agreement; and that 'a list and description of said promissory notes is herewith filed, marked 'Exhibit D,' and made a part of this complaint.' Exhibit D shows the date of each note, the time of its maturity, and its amount. The complaint alleges that the principal of the notes amounts to $358.83; and that neither their makers nor Crockwell & Bassett have paid them, but owe them to the plaintiff.

It thus appears that the suit covers four claims: (1) proceeds of sales of machines; (2) purchase price of attachments; (3) personal notes for machines consigned; (4) guarantied notes for machines consigned.

Murphy and Streeper answered, denying specifically the breaches alleged; setting up that all the items in Exhibits A and B accrued more than two years before the suit was commenced, and it was not commenced within the time prescribed by the laws of Utah territory; claiming a further credit of $203 on Exhibit A; denying that the non-payment of the notes covered by Exhibit C or by Exhibit D was a breach of the condition of the bond; and alleging that Crockwell & Bassett had no notice of the non-payment of the notes covered by Exhibit D. The answer further sets up that, in March, 1876, the plaintiff, by its agent, applied to Murphy to become surety on a second bond, on a new contract with Crockwell & Bassett; and that a settlement, amounting to an accord and satisfaction, was had between the plaintiff and Crockwell & Bassett, as to the matters covered by the complaint, and its agent informed Streeper and Murphy thereof, and that the existing bond was discharged, and Murphy signed the second bond on that assurance, Crockwell & Bassett being then able to indemnify Streeper and Murphy against liability on the first bond, and having since become insolvent. Crockwell & Bassett also answered.

The cause was referred to a referee to 'hear, determine, and report a judgment.' He reported findings of fact and conclusions of law. He reported the facts to be as alleged in the complaint, as to the items of Exhibits A, B, C, and D, with a credit on Exhibit A of $31.22, and that there was due from Crockwell & Bassett, on Exhibit C, at least $2,750, exclusive of allowance for attorney's fees, and on Exhibit D over $450, and due and unpaid from Crockwell & Bassett to the plaintiff, on account of the several matters set forth in the complaint, more than $3,000; that the Exhibits fully credited all sums remitted by Crockwell & Bassett; and that there was no settlement or accounting between Crockwell & Bassett and the plaintiff, and no adjustment of their indebtedness to it, and no agreement or accord or satisfaction made in regard to such indebtedness. The report then proceeded: '(8) In March, 1876, a new contract for the sale of machines was made between the plaintiff and said Crockwell & Bassett, and a new bond given by the latter, upon which the defendant Edmund H. Murphy became a surety. Pending the negotiations for such new contract, and before said Murphy became surety on the new bond, he inquired of George Wilkinson, who was the agent of the plaintiff, to negotiate the new agreement, in regard to the past business and the object of the new bond, and said Wilkinson informed him, in substance, that said Crockwell & Bassett had done well; that the business was satisfactory to the plaintiff, and the plaintiff was about to give them a new contract, under which they would get a larger per cent. and have a better opportunity to make money. No other or further representations were made to said defendant Murphy prior to the execution by him of the new bond, and said representations were not false. At that time no settlement had been made of the accounts; but, from casually looking over the accounts, it appeared that Crockwell & Bassett had, in the shape of notes and leases, far in excess of what they owed, and, had the notes turned over to the plaintiff, and the notes and leases held by them, been good and collectible, the same would have far exceeded their liabilities. At that time but a small portion of the indebtedness of Crockwell & Bassett to plaintiff was due, and it was not known but that the notes and leases taken by Crockwell & Bassett were generally good and collectible. (9) About November, 1876, when the business of plaintiff was taken from Crockwell & Bassett, and turned over to another party, the said defendant Edmund H. Murphy, in the presence of defendant Crockwell and others, inquired of said Wilkinson, who was plaintiff's agent to turn over said business, in regard to the condition of the business of Crockwell & Bassett, when the following conversation occurred between said Murphy and Wilkinson: '''Question. Mr. Murphy:'' So far as the bondsmen are concerned, how did they stand? ''Answer. Mr. Wilkinson:'' So far as the boys (Crockwell & Bassett) have acted, they could not do better. Everything is satisfactory, and the business has been turned over to another party, and everything is agreeable. Q. If that is the case, the bondsmen have nothing further to bother about? A. No; everything is satisfactory, and the business has been turned over.' This is the substance of representations made at that time, and I find that said defendant Murphy got the impression that he was released on the bonds. (10) About the twenty-eighth of March, 1876, and during the negotiation for the new contract and bond, Crockwell & Bassett, desiring to obtain the defendant Streeper as surety on the new bond, called him into their office, and, in the presence of said Wilkinson, and during a conversation there, Charles H. Bassett informed said Streeper he had nothing to fear; and then Streeper asked Wilkinson if he was released or relieved on the first bond, and Wilkinson informed him he had nothing to fear on that, and made an affirmation which induced Streeper to believe he was no longer liable. Streeper did not execute the new bond. (11) There is no evidence to show that any change has occurred in the financial condition of Crockwell & Bassett since the spring of 1876, and I find that no such change has occurred. (12) At the time of the commencement of this action none of the notes guarantied by Crockwell & Bassett, as aforesaid, had been due four years, and there is no evidence of any change in the financial condition of the makers. (13) George Wilkinson had no authority from plaintiff to bind the plaintiff by any declaration as to the release of the said bonds, or either of them; and I find he did not intend to make any statement concerning the release which was untrue, or to deceive or mislead the defendants, or any of them, and his statements were rather in the nature of assent to, or non-denial of, statements made by Crockwell & Bassett in his presence. I do not find he had or exercised any such apparent authority as should induce the defendants to rely on his statements concerning the business of Crockwell & Bassett, or the satisfaction of said bonds, without further inquiry.'

The referee found the following conclusions of law: '(1) The non-payment of the several sums found due and unpaid from Crockwell & Bassett to the plaintiff, as in the findings of fact specified, constitute breaches of said bond, and for which breaches the sureties, as well as the principals, are liable. (2) The action on the bond, at the time of the commencement thereof, was not barred by the statute of limitations in respect to any of said breaches. (3) The plaintiff is not estopped, nor its action barred or affected, against any of the debts, by reason of any representations made to the defendant Murphy or Streeper prior to or since the execution of the second bond referred to in the answer, nor was the execution of the second bond by the sureties procured by fraud. (4) The plaintiff is entitled to judgment that it have and recover of and from the defendants the sum of three thousand dollars, and the costs of this action to be taxed.' Streeper and Murphy filed exceptions to the findings of fact, after the seventh, and to all the conclusions of law. Judgment was entered for $3,000 and costs against all the defendants. Streeper and Murphy appealed to the supreme court of the territory, which affirmed the judgment. Murphy having afterwards died, his administratrix and Streeper appealed to this court. See 2 Utah, 557, and 1 Pac. Rep. 470.

It is assigned for error that the complaint is insufficient to support the judgment, because the first two causes of action, those relating to Exhibits A and B, do not allege the value of the goods consigned, either by the article or in the aggregate. The objection made is that, although the agreement states the shares to which the plaintiff and the consignees are to be respectively entitled, it fixes no price on the machines. The answer to this is that the agreement states that the retail prices for which the machines consigned are sold, as reported by the consignees, are the prices on which the commissions of the consignees are to be calculated; and that the agreement fixes the prices of parts of machines at 40 per cent. discount from list prices, and the prices of attachments at the lowest wholesale rates. By the agreement, when the fixed commissions are deducted from the retail prices of sales, the rest belongs to the plaintiff; and Exhibit A shows the retail price of each machine sold, as reported by the consignees, and how much they retained beyond what they were entitled to retain as commissions, and Exhibit B shows the price of each attachment sold to the consignees. The Exhibits, in connection with the complaint, make the matter definite.

It is also contended, as to the first two causes of action, that the liability of the defendants arose on the sales of goods to the consignees, and that the two years' limitation applies to those causes of action. Murphy and Streeper were not parties to the agreement. Their liability arose on the bond exclusively. All the defendants were parties to the bond. This is a suit on the bond, and what are called by the defendants causes of action are only breaches of the condition of the bond. As the agreement was executory, it was necessary to set out consignments and sales, and resulting amounts due, to establish breaches. Even as regards the consignees, an action against them, if not on the bond, would be on the written agreement. The condition of the bond is that the consignees shall pay all moneys which shall become due 'under or pursuant to the within contract, or which shall arise therefrom, whether by book-accounts, notes, renewals, or extensions of notes or accounts.' We are of opinion that, this suit being on a written instrument, the limitation was four years, and the action was not barred. It is also urged that Streeper and Murphy are not bound for the payment of the notes made or guarantied by the consignees, and that their obligation was discharged when those notes were made or guarantied. But it appears clear to us that the condition of the bond is that the consignees shall pay all money which shall become due by their notes or their indorsements, or otherwise, (the agreement making the indorsement a guaranty of payment.) Language could hardly be stronger or more full. Dixon v. Holdroyd, 7 El. & Bl. 903. It is also urged that the facts found constitute an estoppel, as to Murphy and Streeper. The findings of fact negative the allegations of the answer setting up this defense. What occurred in November, 1876, is outside of any issue raised by the answer.

A point is made that the complaint does not aver that Murphy and Streeper had notice of the default of the consignees; that no notice is shown; and that the bond contains no waiver of such notice. Assuming that the point may now be taken, the findings are silent as to notice, but they show there was no prejudice for want of notice. Moreover, the condition of the bond is absolute that the consignees shall pay all moneys which shall become due to the plaintiff under the agreement, the obligors waiving notice of non-payment on all notes executed, indorsed, or guarantied. As Murphy and Streeper did not make or indorse the notes, their waiver could only apply to a default by the consignees. We see no error in the record, and the judgment is affirmed.

See Murphy v. Victor S. M. Co. ante, 324.


text: Talk:Streeper v. Victor Sewing-Machine Company/Opinion of the Court


text:
Murphy v. Victor Sewing-Machine Company

John R. McBride and J. G. Sutherland, for appellant.

''Chas. W. Bennett'', for appellee.

BLATCHFORD, J.

title: Murphy v. Victor Sewing-Machine Company


text: Talk:Murphy v. Victor Sewing-Machine Company


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Murphy v. Victor Sewing-Machine Company/Opinion of the Court

This suit was brought in the district court of the Third judicial district of the territory of Utah, on the first of October, 1879, by the Victor Sewing-Machine Company, against two persons named Crockwell and Bassett and one named Murphy. On the eleventh of March, 1876, the company, of one part, and Crockwell & Bassett, copartners by that name, of the other, entered into a written agreement, whereby (1) the former appointed the latter exclusive agents for the sale of the Victor sewing-machine for certain counties in Utah territory; (2) the former to deliver the machines, free of charge, at Chicago; (3) the former to sell the machines to the latter at 50 per cent. discount from retail list of prices, and parts and attachments at regular agents' prices; (4) settlement to be made by note at 12 months from first of month following date of invoice, payable to the former, or its order, at bank in Salt Lake City, with 6 per cent. interest, or, in lieu, the latter may indorse and assign to the former promissory notes, drawing interest, given to the latter, not payable longer than 12 months from the time they are received by the former. On the same day the three defendants executed a joint and several bond, under seal, to the plaintiff, in the penalty of $2,000, with a condition, of which all that is material to this case was as follows: 'The condition of this obligation is such, that if the above-bounden Crockwell & Bassett shall well and truly pay, or cause to be paid, unto the said Victor Sewing-Machine Company, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of the said Crockwell & Bassett to the said Victor Sewing-Machine Company, whether such indebtedness or liability shall exist in the shape of book-accounts, notes, guarantied leases, renewals or extensions of notes, accounts, or guarantied leases, acceptances, indorsements, or otherwise, or whether such liability shall arise from the consignment of machines or other property to the said Crockwell & Bassett by the said Victor Sewing-Machine Company, under any existing contract, or any contract which shall be hereafter entered into in writing by and between the said Crockwell & Bassett and the said Victor Sewing-Machine Company, hereby waiving presentment for payment, notice of non-payment, protest, or notice of protest, and diligence, upon all notes or leases now or hereafter executed, indorsed, transferred, guarantied, or assigned by the said Crockwell & Bassett to the Victor Sewing-Machine Company, then this obligation to be void; but otherwise to be in full force and effect.'

This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hoec verba the agreement and the bond, and avers that between the eleventh of March, 1876, and the first of January, 1877, the plaintiff, in pursuance of the agreement and at the request of Crockwell & Bassett, sold and delivered to them Victor sewing-machines, of the value of more than $5,000; that the defendants have broken the conditions of the bond, in that Crockwell & Bassett, in part payment for such machines, made and delivered to the plaintiff their four promissory notes,-one for $423.50, dated April 1, 1876, at 12 months, with interest; one for $1,216.75, dated May 2, 1876, at 12 months, with interest; one for $49.50, dated September 9, 1876, at 9 months, with interest; and one for $369.47, dated September 1, 1876, at 12 months, with interest, all providing for 10 per cent. interest per annum after due until paid, and 10 per cent. attorney's fees, if collected by an attorney; that Crockwell & Bassett, between the dates first named, resold to purchasers some of the machines, and took the notes of the purchasers therefor, and, in part payment to the plaintiff, indorsed and guarantied the payment of said notes, and delivered them to the plaintiff, their principal amounting to $1,012; that Exhibit B to the complaint contains a statement of the date of each note, the date when due, the name of the maker, and the amount; and that there is due to the plaintiff on all of said notes over $4,200, for principal, interest, and attorney's fees, less a credit of $1,226.31.

Murphy answered, denying specifically the breaches alleged, setting up payment of the notes by Crockwell & Bassett, and averring that the contract and bond were procured by fraud and misrepresentations on the part of the plaintiff, made to Crockwell & Bassett, and on which they relied, which the plaintiff knew to be untrue, and which are set forth; and that the defendants were induced to execute the bond by false and fraudulent representations of the plaintiff, in this, that the plaintiff represented to the defendants that it was well acquainted with the business of Crockwell & Bassett; that they were in good credit, and were good business men, and had promptly met their obligations, and would make money out of the proposed contract with the plaintiff, whereas the plaintiff knew that they were then in failing circumstances, and were not able to pay their debts, and were not good business men, and were at that time indebted to the plaintiff, and had not met their obligations, and that they would lose money on the proposed contract with the plaintiff; and that the defendants signed the bond solely on the faith and credit which they gave to those representations. Crockwell & Bassett also answered.

The cause was referred to a referee to 'hear, determine, and report a judgment.' He reported findings of fact and conclusions of law. He found the facts to be as alleged in the complaint, and that there was due, at the commencement of the suit, from Crockwell & Bassett, to the plaintiff, in respect of the matters set forth in the complaint, over $2,000, exclusive of offsets and attorney's fees; and that the execution, neither of the agreement nor of the bond, was procured by any false or fraudulent representations made to Crockwell & Bassett, or either of them, by the plaintiff. The report then proceeded: 'I find the defendant Edmund H. Murphy did not execute said bond on or relying upon the representations set forth in the last defense of the answer of the sureties, and that the material part of said alleged representations was not made; that he inquired of George Wilkinson, plaintiff's agent in negotiating said agreement and bond, the object thereof and the condition of the business, and said Wilkinson informed said Murphy that the plaintiff proposed to give Crockwell & Bassett a new contract, and larger commissions, and an opportunity to make more money; that, so far as they had acted, it was to the satisfaction of the plaintiff. I find that the business of Crockwell & Bassett did then appear to be in a good condition, and they had thus far acted to the satisfaction of the plaintiff; that said Wilkinson made no settlement of the business with Crockwell & Bassett, but they had then given and turned over guarantied notes to the plaintiff to the full amount of their indebtedness; that said notes were not due, and their indebtedness to the plaintiff on cash account very small; that they held in their hands notes and leases taken on sales of machines, far in excess of their liabilities, and, had said notes and leases, and the notes guarantied and delivered to plaintiff, been good and collectible, the contrary of which was not then known to the plaintiff or its agent, the business of Crockwell & Bassett would have been in good condition; that the said George Wilkinson, in November, 1876, had no authority from the plaintiff except to take the business out of the hands of Crockwell & Bassett and turn it over to another party. He did not have in his possession said agreement or bond, or the notes mentioned in the complaint, or exercise or claim to exercise any authority, real or apparent, in regard thereto.'

The referee found the following conclusions of law: '(1) That there was due from the defendants Crockwell & Bassett to the plaintiff, at the time of the commencement of the action, on account of the matters stated in the complaint, more than the sum of two thousand dollars, the non-payment of which constituted breaches of the said bond. (2) That the execution of said bond was not procured by fraud, and the plaintiff is not barred or estopped from enforcing the same, nor are the sureties thereon, or any of them, discharged by reason of any matters occurring subsequent to the execution of the bond. (3) The plaintiff is entitled to judgment against all the defendants, for the sum of two thousand dollars, and interest at ten per cent. per annum, from the commencement of the action, to-wit, the first day of October, 1879, and costs of suit, to be taxed.'

Murphy filed exceptions to the findings of fact and the conclusions of law. Judgment was entered for $2,550, and costs. Murphy appealed to the supreme court of the territory, which affirmed the judgment, and, he having afterwards died, his administratrix appealed to this court. It is alleged as error that the complaint is insufficient in not alleging notice to Murphy of the default of Crockwell & Bassett; and that no notice is shown. There is no force in this objection. The condition of the bond is absolute that Crockwell & Bassett shall pay all indebtedness, the obligors waiving notice of non-payment on all notes executed, indorsed, or guarantied. As Murphy did not make or indorse the notes, his waiver could only apply to a default by Crockwell & Bassett. As to the defenses of fraud and misrepresentation set up in the answer, they are negatived by the findings. The judgment is affirmed.

See Streeper v. Victor S. M. Co., post, 327.#e


text: Talk:Murphy v. Victor Sewing-Machine Company/Opinion of the Court


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Whitney v. Morrow

Enoch Totten, for plaintiffs in error.

No appearance for defendant in error.

FIELD, J.

title: Whitney v. Morrow


text: Talk:Whitney v. Morrow

title: Talk:Whitney v. Morrow


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Whitney v. Morrow/Opinion of the Court

This case was before this court at the October term of 1877. 95 U.S. 551. It is an action of ejectment for the possession of a tract of land, consisting of 94 acres and a fraction of an acre, situated in the borough of Fort Howard, in Brown county, Wisconsin. The plaintiffs derived their title to the premises from one Pierre Grignon, to whom, on June 2, 1870, a patent was issued by the United States. The defendant, in his answer, sets up an adverse possession of the land in himself, and those through whom he derived his interest, for more than 40 years, under a claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the premises. It was admitted that he was in the possession of the land at the commencement of the action, and on the trial he relied, not only upon his adverse possession, but also upon a legislative confirmation of a claim to it, under the act of February 21, 1823, by Alexis Gardapier, from whom he traced his title. It appeared on that trial that commissioners under the act, which revived and continued in force certain previous acts for the adjustment of land claims in the territory of Michigan,- which then included Wisconsin,-had confirmed a claim to land presented by said Gardapier and one presented by Pierre Grignon. The confirmations were subject to the condition that the tracts confirmed did not interfere with certain previous confirmations. On April 17, 1828, congress confirmed the acts of the commissioners respecting these claims; that is, 'confirmed the confirmations,' with a proviso, however, that they should not be so construed as to extend to any lands occupied by the United States for military purposes. The act also made it the duty of the register of the land-office at Detroit to issue to the claimants certificates, upon which patents were to be granted by the commissioner of the general land-office. But it did not appear on the trial that any patent had ever been issued to Gardapier. The court held that if, at the time of the confirmation, the land claimed by him was not occupied by the United States for military purposes, it operated to vest in him a perfect title to the land; a legislative confirmation always operating, unless accompanied with reservations, as a conveyance of the estate, or right of the government, to the party who is in possession of the premises or has an interest in them.

The tract confirmed appeared to have clearly defined boundaries, or, at least, such as were capable of identification. The question, therefore, whether the land was thus occupied was of the utmost consequence, and the defendant offered, in various forms, to prove, by witnesses produced for that purpose, that it was not thus occupied on the confirmation by congress, and had not been previously; and also that for a period of nearly 40 years the land had been in the actual, open, notorious, and exclusive possession of Gardapier and parties claiming under him, and that during that time it had been cultivated, improved, and built upon without objection from any one. But the court refused to admit the proof, and also refused an instruction to the jury, which was requested, that in order to find for the plaintiff they must be satisfied that the land was occupied for military purposes on April 17, 1828, or was reserved for military purposes at that time, or was treated by the government as thus reserved. The plaintiff recovered, but for the error in this ruling and refusal, this court reversed the judgment and ordered a new trial. On the second trial, the judgment in which is now before us for review, no proof was offered of the military occupation; the plaintiffs relying upon the patent to Grignon, and the defendant upon the legislative confirmation of the claim to Gardapier, which operated to perfect his title to the tract named, including the premises in controversy, if it were not excepted by its occupation by the United States for military purposes. Such an exception, if it existed, should have been established by the plaintiffs, whose right to the premises depended upon its existence. If the land was thus occupied the confirmation did not apply, and it remained public property. That which was essential to the plaintiffs' recovery was not, therefore, established, nor was any evidence offered for that purpose. The confirmation to Gardapier and the title which followed to the tract designated stood unquestioned, and justified the direction given to the jury that they should find for the defendant.

It would seem that the plaintiffs offered a patent to Gardapier, also issued in 1870, and that its admission was refused. We cannot see what bearing it may have had, as a copy of it is not contained nor are its contents stated in the record. It could not deprive the confirmee of the land confirmed to him by the act of congress if that was by specific boundaries, distinguishing and separating it from other parcels, or was capable of identification. If, by a legislative declaration, a specific tract is confirmed to any one, his title is not strengthened by a subsequent patent from the government. That instrument may be of great service to him in proving his title, if contested, and the extent of his land, especially when proof of its boundaries would otherwise rest in the uncertain recollection of witnesses. It would thus be an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the act of congress. Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U.S. 78; Tripp v. Spring, 5 Sawy. 209, 216. If there was any difference in the grade of the two conveyances of the government,-that by a direct legislative act, and that by officers acting under provisions of the statute,-it would seem that there should be greater weight and dignity attached to the legislative grant as proceeding more immediately from the source of title than the patent. No impeachment can be had of the motives of the legislature, whereas the motives of officers employed to supervise the alienation of public lands may sometimes be questioned, as in proceedings to set aside their action. Still, if the law be complied with, the title passes as completely in the one case as in the other. Montgomery v. Bevans, 1 Sawy. 677.

Judgment affirmed.

title: Whitney v. Morrow/Opinion of the Court


text: Talk:Whitney v. Morrow/Opinion of the Court


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Knickerbocker Life Insurance Company v. Pendleton

In error to the Circuit Court of the United States for the Western District of Tennessee.

Leslie W. Russell, for plaintiff in error.

D. H. Poston and W. K. Poston, for defendant in error.

This action was brought in the First circuit court of Shelby county, Tennessee, by the defendants in error, Pleasant H. Pendleton and others, against the plaintiff in error, the Knickerbocker Life Insurance Company, to recover the amount of a policy of life insurance on the life of Samuel H. Pendleton. After declaration filed, the case was removed into the circuit court of the United States, and the defendant then pleaded no indebtedness; failure to pay the stipulated annual premium; failure to pay a draft given for premium; and failure to give notice and proof of death. A replication put the cause at issue, and it was tried at Memphis in November term, 1880, and a verdict rendered for the plaintiff. Judgment being entered upon this verdict, the case is brought here by writ of error. The matters for our consideration are exhibited in a bill of exceptions taken at the trial, from which it appears that the plaintiff introduced in evidence the policy sued on, dated July 14, 1870, issued for the benefit of the plaintiffs, as the children of Samuel H. Pendleton, for the sum of $10,000 on his life, in consideration of $364.60 then paid, and of the annual premium of a like sum to be paid on or before the fourteenth day of July in every year during the continuance of the policy. The company agreed to pay the sum insured within three months after due notice and satisfactory proof of the death of the person whose life was insured; but the policy contained the following condition, to-wit: 'The omission to pay the said annual premium on or before twelve o'clock, noon, on the day or days above designated for the payment thereof, or failure to pay at maturity any note, obligation, or indebtedness, (other than the annual credit or loan,) for premium or interest hereon, shall then and thereafter cause this policy to be void, without notice to any party or parties interested herein.'

The plaintiffs next introduced in evidence the renewal receipt, in the words and figures following, viz.:

'RENEWAL RECEIPT.

'Mississippi Valley Branch Office of the Knickerbocker Life     Insurance Company at Memphis, Tenn. Principal office, 161      Broadway, N. Y. Renewal No. 94,597.

'NEW YORK, July 14, 1871.

'Received of Pleasant H. Pendleton, etc., three hundred &     sixty-four 65-100 dollars, being the premium on policy No. 2,346, which is hereby continued in force until the     fourteenth day of July, 1872, at noon.

'Not valid until countersigned by the managers of the     Mississippi Valley Branch office at Memphis, Tenn.

'ERASTUS LYMAN, President.

'GEO. F. GRIFFIN, Secretary.

'Countersigned at Memphis this ___ day of ___ 18__.

45,432.]

GREENE & LUCAS, Managers.'

The plaintiff then introduced evidence tending to show that Samuel H. Pendleton died at his home, near Auburn, Arkansas, on the twenty-sixth day of March, 1872; that his children, the plaintiffs, were then under age; and that their uncles, A. O. Douglass and W. F. Douglass, on their behalf, wrote from Auburn to Greene & Lucas, the agents of the defendants at Memphis, the former on the twenty-ninth of March, and the latter on the second of April, 1872, giving them notice of Pendleton's death. A. O. Douglass in his letter requested Greene & Lucas to advise him what steps were necessary to be taken in the matter of the policy, and Greene & Lucas at once answered, by letter dated April 2d, that the policy became forfeited on the fourteenth of October, 1871, by failure to pay the premium, explaining that when the premium became due they took the draft of Dr. S. H. Pendleton on Moses Greenwood & Son, of New Orleans, at three months, in lieu of the cash, conditioned that failure to pay the draft would forfeit the policy, and that Greenwood & Son refused to accept the draft, and refused to pay it at maturity. The correspondence was continued by an additional letter from W. F. Douglass to the agents, dated April 9th, and a reply to the same, by the latter, dated April 15, 1872, repeating their position that the policy was forfeited and void, and that there was no legal claim to the insurance.

The defendants below, after an unsuccessful motion for a nonsuit, put in evidence the following draft, given by Samuel H. Pendleton in part payment of the premium which became due July 14, 1871:

AUBURN, ARK., July 14, 1871.

'$325.00.

'Three months after date, without grace, pay to the order of     the Knickerbocker Life Insurance Co. three hundred and      twenty-five dollars, value received, for premium on policy      No. 2,346, which policy shall become void if this draft is      not paid at maturity.

[Signed]

'S. H. PENDLETON.

To Moses Greenwood & Son, New Orleans, La.

Evidence was then introduced by the defendants tending to show that the draft was transmitted by the agents of the company, through the Union & Planters' Bank, of Memphis, to the Louisiana National Bank, of New Orleans, to be presented for acceptance, and was received by the latter bank, and presented on the twenty-ninth of September, 1871; that acceptance was refused by Moses Greenwood & Son, the drawees, assigning as the reason of their refusal that they had no advice; that no protest of the draft for non-acceptance was made, because it was marked 'no protest;' but that it was returned, on the thirtieth of September, to the Union & Planters' Bank, of Memphis; that it was again transmitted to the Louisiana National Bank, on the fifth of October, 1871, for collection, but was not paid when it became due, and for the same reason as before no protest for non-payment was made, and it was returned to the Union & Planters' Bank on the seventeenth of November, 1871. No direct evidence of presentment to the drawees for payment was given; but the cashier of the Louisiana National Bank testified that, according to their rules and custom of doing business, it must have been presented for payment when due. Evidence was further introduced tending to show that, on or about the third of October, 1871, when the draft was first returned from New Orleans, the agents, Greene & Lucas, informed S. H. Pendleton, by letter, of its nonacceptance; and again, on or about the twentieth of November, 1871, they informed him in the same way of its non-payment; that in the latter part of November, or early in December, 1871, he (Pendleton) called on said agents, and expressed surprise that Greenwood & Co. did not pay his draft, but said that they were then prepared to pay it; that the said agents informed him that, as the policy was lapsed by reason of the non-payment of the draft, it would be necessary, in order to reopen the same, that he should be re-examined; and that he promised to call again, but never did; also, that the dealings of the insurance company in reference to the issue of the policy and the payments of premiums thereon were solely with the said S. H. Pendleton.

Moses Greenwood, of the firm of Moses Greenwood & Son, a witness on the part of the plaintiffs, testified to the effect that his firm were cotton factors and commission merchants, and acted as such for S. H. Pendleton, in 1869, 1870, and 1871, furnishing him supplies for his plantation, and selling his cotton crops; and kept a running account with him; and were accustomed to accept and pay his drafts even when he had no money or property in their hands, so that he had good reason to believe that the draft in question would be honored. The witness presented a copy of the account of his firm with S. H. Pendleton, which showed a balance in his favor on the fourteenth of July, 1871, of about $200, but a balance against him on the fourteenth of October, 1871, of $502.52. The witness stated that he found no entry of the acceptance or payment of the draft in question, and had no recollection of it other than what was shown by the books, and by certain letters from the firm to Pendleton. One of these letters, dated September 29, 1871, informed him (Pendleton) that his draft for life policy (some $330) was presented that day for acceptance; that, having no advice of it, they had requested that it be held till they got an answer from him, and asked him to write at once if he wanted it paid. The other letter, dated November 4, 1871, acknowledged one from him (Pendleton) of the twenty-seventh of October, and added, 'Will pay that insurance note when presented, as you request. This is the first advice we have had about it.'

After the evidence was closed the defendant below, (the insurance company,) through its counsel, requested the court to direct the jury to find a verdict in favor of the defendant, on the ground that the policy sued on was not in force at the time of the death of the person whose life was insured thereby. The court refused to give such direction, and the defendant excepted. The defendant then requested the court to give the following several instructions to the jury: (1) That upon the undisputed facts appearing from the evidence the defendant is entitled to a verdict; (2) that the reception of this draft for $325 by the defendant on account of premium, imposed upon the drawer or the plaintiffs the duty of making absolute provision for its payment at maturity at the place of payment, and if he or they failed to do so, the defendant was under no obligation to present the same for payment; (3) that the refusal of the drawees to accept the draft when presented for acceptance relieved the defendant from its obligation, if any existed, to presented the same for payment in the absence of further notice that the same would be paid when due; (4) that if they believed from the evidence either that the drawer had not placed any funds in the hands of the drawees to meet the draft at its maturity, or that it was in fact presented for payment at or after its maturity, the policy became void and of no effect upon the death of the party whose life was insured thereby, and the plaintiffs are not entitled to recover.

The court refused so to charge, and the defendant excepted. Thereupon the court proceeded to charge the jury upon the whole case; but it will only be necessary to examine a single point in which, as we think, the charge was erroneous, and upon which the whole case depends. The point is this: The court instructed the jury, in substance and effect, that the insurance company, having accepted the draft or bill of Dr. Pendleton on his factors for the premium due on the policy, was in duty bound to pursue all the steps necessary to enable it to recover against him as drawer of said draft or bill, regarded as a bill of exchange under the law-merchant,-among which steps one was that of protesting the bill for non-acceptance, and another that of protesting it for non-payment. The court held that while it was not necessary that the draft should have been presented for acceptance before maturity, yet that, having been so presented, and acceptance refused, the defendants ought to have had it regularly protested, and notice of dishonor given to the drawer. The court further held that if the draft was presented for payment and not paid, the defendants were bound to have had it regularly protested for non-payment. True, it was conceded that the defendants might be excused from the performance of these duties if it were shown that the drawer had no funds in the hands of his factors, and had no reasonable expectation that his draft could be accepted. But, unless this excuse could be established, the doctrine of the charge was that the defendants must have complied with all the before-mentioned formalities incident to commercial paper, in order to entitle them to the benefit of the condition for avoiding the policy. The following language was used on this subject. The court said:

'The defense of the company is that the condition for payment has been violated, and the policy ceased before the death of Pendleton. This is undoubtedly a good defense, unless the law imposed some obligation on the company to perform some duty in respect to the draft which it has not performed, and the neglect of which precludes it from invoking the breach of the condition for payment as a defense. In other words, if by its own laches and neglect of the duty assumed by its holder of the draft, the failure to pay has occurred, or the parties have been injured, the company cannot rely on the breach of this condition as a defense. What, then, were the duties imposed on the company as the holder of this draft by the contract of the parties? * * * I have concluded that the true measure of the duty of the company is to be found in the rules of law governing a holder of commercial paper, and that by the very fact of taking a draft like this they assumed, in reference to this paper, all the duties devolving on a holder of it taken for any other consideration, and were obliged to proceed with it as any holder would be under the commercial law. On the other hand, any neglect to proceed properly in the discharge of that duty would be excused under the same circumstances as such neglect would be excused with any other holder, and not otherwise. The condition in the policy was a security to the company, of which it can avail itself only by showing a strict compliance with that duty, or some lawful excuse for non-compliance. * * *

There is no doubt the draft was sent forward for acceptance, presentment, and acceptance refused. * * * It was not protested for non-acceptance, the agents of the company having directed that no protest should be made, and no legal or proper notice of non-acceptance was given to the drawer. This was a clear breach of duty on the part of the company, and precludes it from claiming a forfeiture of the policy unless excused, as to which I shall instruct you further on. If protest and legal notice had been given for non-acceptance, the company need not have presented it for non-payment; but, not having protested the note for non-acceptance, it was its duty to present at maturity and demand payment. There is some dispute as to whether the note was presented for payment on the day of its maturity, namely, October 14, 1871, or later, but there is no claim that it was protested for non-payment and legal notice given. The only notice was a letter from the agents, dated November 20, 1871. This was not legal notice, and the drawer was clearly discharged unless the neglect was excused. By this neglect, as well as the neglect to protest and give legal notice for non-acceptance, the company precluded itself from relying on a breach of the condition in the policy.' Mr. Leslie W. Russell for plaintiff in error.

[Argument of Counsel from page 703 intentionally omitted]

Mr. D. H. Poston and Mr. W. K. Poston, for defendants in error.

[Argument of Counsel from pages 704-705 intentionally omitted]

Mr. JUSTICE BRADLEY delivered the opinion of the court. He recited the facts as above stated, and continued:


text: Talk:Knickerbocker Life Insurance Company v. Pendleton


text:
Knickerbocker Life Insurance Company v. Pendleton/Opinion of the Court

The court instructed the jury, in substance and effect, that the insurance company, having accepted the draft or bill of Dr. Pendleton on his factors for the premium due on the policy, was in duty bound to pursue all the steps necessary to enable it to recover against him as drawer of said draft or bill, regarded as a bill of exchange under the law merchant — amongst which steps one was that of protesting the bill for non-acceptance, and another, that of protesting it for non payment. The court held that, whilst it was not necessary that the draft should have been presented for acceptance before maturity, yet that, having been so presented, and acceptance refused, the defendants ought to have had it regularly protested, and notice of dishonor given to the drawer. The court further held, that if the draft was presented for payment, and not paid, the defendants were bound to have had it regularly protested for non-payment. True, it was conceded, that the defendants might be excused from the performance of these duties if it were shown that the drawer had no funds in the hands of his factors, and had no reasonable expectation that his draft could be accepted. But, unless this excuse could be established, the doctrine of the charge was, that the defendants must have complied with all the before-mentioned formalities incident to commercial paper, in order to entitle them to the benefit of the condition for avoiding the policy.

As the drawer of the bill in this case was really interested in the policy on behalf of his children, we do not concur in the view taken by the court below, that a forfeiture of the policy required, on the part of the insurance company, as holders of the bill, the same diligence, and performance of the same acts, as were required of them to make the drawer liable upon it. For the latter purpose a regular protest for non-acceptance, or non-payment, or a proper excuse for omitting them, such as want of funds in the hands of the drawees, was undoubtedly necessary; for, according to the general law prevailing in this country, the draft was a foreign bill of exchange, being drawn by a person resident in one state upon persons resident in another. Buckner v. Finley, 2 Pet. 589; Dickins v. Beal, 10 Pet. 572, 579; Story, Bills, §§ 23, 465; 1 Daniel, Neg. Inst. pp. 7, 8, § 7. But whether the policy would not be forfeited without any such protest, or excuse for non-protest, is a different question, depending upon the contract of the parties. This contract was expressed on the face of the draft itself, which contained a statement that it was given for premium on policy No. 2,346, followed by this condition: 'which policy shall become void if this draft is not paid at maturity.' This was the condition, and the only condition on which the policy was to become void. The primary condition expressed in the policy itself, of forfeiture for non-payment of the premium on the day it became due, was waived by the receipt of the draft, and the consequent extension of the time thereby. The renewal receipt given when the draft was received was absolute, it is true, acknowledging the receipt of the premium, and declaring the policy continued in force for another year. But this receipt is explained by the actual transaction, the mode of payment being shown to be the making and delivery of the draft in question, having in it the condition above expressed, which condition was in exact accordance with the secondary condition contained in the policy, namely, 'failure to pay at maturity any note, obligation, or indebtedness (other than the annual credit or loan) for premium or interest hereon, shall then and thereafter cause this policy to be void, without notice to any party or parties interested herein.'

We think it clear, therefore, that, notwithstanding the renewal receipt, the condition expressed in the draft was binding on the insured. As we have shown, that condition was that the policy should become void if the draft was not paid at maturity. The draft, being without grace, matured on the fourteenth of October, 1871. If not paid on that day the policy was forfeited, unless it was the usage of the New Orleans banks to grant days of grace even when they were waived, of which there was some evidence on the trial. In such case the forfeiture would take place, if the draft were not paid on the seventeenth of October. Of course, it must be presented for payment on the one day or the other, for the drawees could not pay it unless it was presented, for they would not know where to find it. But supposing it to have been presented for payment, and payment refused by the drawees, then the condition of forfeiture was complete. Protest and notice of non-payment might be further necessary to hold the drawer, if the insurance company desired to hold him; but they were not necessary to the forfeiture. That occurred when non-payment at maturity or presentation occurred. The drawer, Pendleton, who took entire charge of the policy for his children, put its existence on the condition of payment of the draft at maturity; and it was his business, as agent or guardian of his children, to see that the draft was thus paid; that the requisite funds were in the hands of the drawees, or that they would pay it whether in funds or not. Such, we think, was the clear purport of the condition, and, as the court below took a different view, holding that the insurance company was bound not only to present the draft for payment, but to have it protested for non-payment before a forfeiture of the policy would ensue, the judgment must be reversed. What might have been the result had the bill of a stranger been taken in payment of the premium, is a different question which we are not now called upon to decide. It may be that in such a case the company would have been required to take all the steps necessary to fix the liability of all the parties to the bill.

With regard to the other points raised by the plaintiffs in error a few words will suffice.

(1) They contended at the trial, and contend here, that no presentment of the draft was necessary, because Pendleton had no funds in the hands of the drawees. The substance and effect of the charge given by the court on this point was that if Pendleton had a reasonable expectation that the draft would be accepted and paid as if there was an agreement between him and the drawees that they would accept his drafts, or a course of dealing between them, in which the drawees were accustomed to accept his drafts without reference to the state of their mutual accounts, he was entitled to demand and notice, or, according to our view of the principal point in the case, the insurance company was bound to present the draft for payment at its maturity. In this, we think, there was no error. The law is laid down substantially to the same effect in Dickins v. Beal, 10 Pet. 577; and see 2 Daniel, Neg. Inst. § 1074.

(2) The plaintiffs in error contend that as the draft was not accepted by the drawees when presented for acceptance, they were under no obligation to present it for payment at maturity. This would be so in an ordinary case of non-acceptance of a bill, provided it was followed up by protest and notice. But this particular draft or bill had a condition in it that the policy should be void if it were not paid at maturity, and the plaintiffs in error claimed the benefit of this condition. As forfeitures upon condition broken are to be strictly construed, the condition in this case could not be regarded as broken by the non-acceptance of the bill before maturity, but could only be broken by non-payment at maturity. The drawees might not have felt authorized to accept the bill when it was presented; and yet, when it came to maturity, in consequence of further advice from the drawer or other reasons, they might be ready and willing to pay it. The holders of the policy were entitled to this opportunity of obviating a forfeiture. We are of opinion, therefore, that the court below was right in holding that a presentment for payment was necessary, notwithstanding the non-acceptance.

(3) The plaintiffs in error further contend that the charge was erroneous in holding that no formal proof of the death of S. H. Pendleton was necessary in this case. On this point the charge was as follows: 'As to the proof of loss not being filed, it is conceded notice of the death was given. If, when that was done, the agents of the company repudiated all liability, and informed the parties that the policy had lapsed, then no proof of loss was required by them, and the failure to file it cannot alter the case.' We think that there was no error in this instruction. The weight of authority is in favor of the rule that a distinct denial of liability and refusal to pay on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss or death. It is equivalent to a declaration that they will not pay, though the proof be furnished. Tayloe v. ''Merchants' Fire Ins. Co.'' 9 How. 390, 403; Allegre v. ''Maryland Ins. Co.'' 6 Har. & J. 408; Norwich Co. v. ''Western Mass. Ins. Co. 34 Conn. 561; Thwing v. Great Western Ins. Co.'' 111 Mass. 93, 110; Brink v. ''Hanover Fire Ins. Co.'' 80 N. Y. 108; May, Ins. §§ 468, 469.

The preliminary proof of loss or death required by a policy is intended for the security of the insurers in paying the amount insured. If they refuse to pay at all, and base their refusal upon some distinct ground, without reference to the want or defect of the preliminary proof, the occasion for it ceases, and it will be deemed to be waived. And this can work no prejudice to the insurers, for in an action on the policy the plaintiff would be obliged to prove the death of the person whose life was insured, whether the preliminary proofs were exhibited or not. The judgment of the circuit court is reversed, and the cause remanded, with directions to award a new trial.


text: Talk:Knickerbocker Life Insurance Company v. Pendleton/Opinion of the Court


text:
Page:Popular tales from the Norse (1912).djvu/512

 326 So the King called out in a louder voice, but the lad was so deep in his prayers he couldn't hear him this time either.

"!" roared out the King; "it's I, the King, who want to come in."

Well, up jumped the lad and ran to the door, and unlocked it, but in his hurry he forgot to hide the picture.

But when the King came in and saw the picture, he stood there as if he were fettered, and couldn't stir from the spot, so lovely he thought the picture.

"So lovely a woman there isn't in all the wide world," said the King.

But the lad told him she was his sister whom he had drawn, and if she wasn't prettier than that, at least she wasn't uglier.

"Well, if she's so lovely," said the King, "I'll have her for my queen;" and then he ordered the lad to set off home that minute, and not be long on the road either. So the lad promised to make as much haste as he could, and started off from the King's palace.

When the brother came home to fetch his sister, the stepmother and stepsister said they must go too. So they all set out, and the good lassie had a casket in which she kept her gold, and a little dog, whose name was "Little Flo;" those two things were all her mother left her. And when they had gone a while, they came to a lake which they had to cross; so the brother sat down at the helm, and the stepmother and the two girls sat in the bow foreward, and so they sailed a long, long way.

At last they caught sight of land.

"There," said the brother, "where you see the white strand yonder, there's where we're to land;" and as he said this he pointed across the water.


text:
The Colonel McLeod

James H. Davidson, for motion.

E. G. Rogers, in opposition.

WAITE, C. J.

title: The Colonel McLeod


text: Talk:The Colonel McLeod

title: Talk:The Colonel McLeod


text:
The Colonel McLeod/Opinion of the Court

Neither the record in this case nor the part thereof on which this motion depends has been printed, and the appellees have neglected to state in their motion papers the facts as presented by the transcript on which they rely. An affidavit has been filed to the effect that the appellees were not served with a citation, nor with a notice of an application for the allowance of an appeal, until after the expiration of 60 days, Sundays exclusive, from the time of the rendition of the decree appealed from. In the same affidavit it is stated, however, that the proctor of the appellees was informed that an appeal-bond had been presented to the circuit court for approval within the 60 days. It is also stated that on the tenth of January, 1884, an order allowing an appeal was entered nunc pro tunc as of the date of the presentation of the bond. An affidavit filed by the appellants shows that on the day the bond was presented to the circuit court, it was approved, allowed, and filed in the cause. As upon this motion it rests on the appellees to show that the bond was not accepted in time, and that has not been done, the motion to vacate the supersedeas is denied. In this connection we take occasion to say that motions of this kind, made before the record is printed, must be accompanied by a statement of the facts on which they rest, agreed to by the parties, or supported by printed copies of so much of the record as will enable us to act understandingly, without reference to the transcript on file. Motion denied.

title: The Colonel McLeod/Opinion of the Court


text: Talk:The Colonel McLeod/Opinion of the Court


text:
Scharff v. Levy

J. W. Noble and J. C. Orrick, for plaintiffs in error.

J. P. Ellis and Jeff, Chandler, for defendants in error.

WAITE, C. J.

title: Scharff v. Levy


text: Talk:Scharff v. Levy

title: Talk:Scharff v. Levy


text:
Scharff v. Levy/Opinion of the Court

The order remanding this cause to the state court from which it was removed is affirmed on the authority of Alley v. Nott, 111 U.S. 472, S.C.. 4 SUP. CT. REP. 495, where it was decided that a case could not be removed from a state court under the act of March 3, 1875, c. 137, (18 St. 470,) after a hearing on a demurrer to a complaint because it did not state facts sufficient to constitute a cause of action. To that decision we adhere. The Code of Civil Procedure of New York, from which state that cause came, provided that the court might, in its discretion, allow the party in fault to plead over or amend after the decision against him on a demurrer. In Missouri, from which state this case comes, section 3518 of the Revised Statutes cf 1879 provides that a plaintiff may amend, of course, with or without costs, as the court may order. But in Missouri, as in New York, a general demurrer to a petition or complaint raises an issue of law, which, when tried, will finally dispose of the case unless the plaintiff amends or the defendant answers, as may be required. 'If final judgment is entered on the demurrer, it will be a final determination of the rights of the parties, which can be pleaded in bar of another suit for the same cause of action.' An issue of law involving the merits of the action is as much tried on the hearing of a demurrer in Missouri as it is in New York. The fact that in Missouri an amendment may be made or a plea filed as a matter of course does not affect the principle on which the right of removal depends. The demurrer in the present case is not set out in full in the record, but it is conceded in the brief of counsel for the plaintiffs in error that it was 'on the ground that the facts stated did not constitute a cause of action,' and that would have been a fair inference from the entry, 'demurrer filed,' if the admission had not been made. Affirmed.

title: Scharff v. Levy/Opinion of the Court


text: Talk:Scharff v. Levy/Opinion of the Court


text:
Halferty v. Wilmering

Galusha Parsons, for plaintiff in error.

No appearance for defendant in error.

MATTHEWS, J.

title: Halferty v. Wilmering


text: Talk:Halferty v. Wilmering

title: Talk:Halferty v. Wilmering


text:
Halferty v. Wilmering/Opinion of the Court

The plaintiff in error, who was plaintiff below, sued to recover damages for an alleged breach of a written contract, entered into at Chicago, for the sale and delivery of 1,000 hogs, to average 250 pounds or over, to be delivered at Plattsburg, Missouri, in the month of December, 1876, at the seller's option, at $4.50 per hundred gross weight. The contract contained the following clause: 'Each party hereby agrees to deposit one thousand dollars ($1,000) each in the Union Stock-yard National Bank for the faithful performance of the above contract, the thousand dollars to be forfeited to the party who fails to perform his part of the contract.' The petition, setting out the cause of action, alleged that 'the plaintiff duly performed all the conditions upon his part to be kept and performed.' The answer atated that the defendant 'denies each and every allegation in said petition, and the three several counts thereof contained, as fully and to the same purpose and effect as though each special allegation were herein specifically put in issue.' On the trial it was claimed by counsel for the plaintiff that the deposit of money, specified in the contract, was not a condition precedent to the right of recovery; but that if it was, its performance by the plaintiff was admitted upon the face of the pleadings. The court was requested so to instruct the jury, and its refusal to do so is now alleged as error. The obligation to make the stipulated deposit rested upon each party, as one of the terms of the agreement, so that to charge the other with a default, it became necessary to allege and prove performance, or some legal excuse for non-performance. And if the national bank, specified in the contract, refused to become the depository for the purposes of the agreement, none other could be substituted without the consent of both parties. This is the plain meaning of the stipulation. It is one the parties had a right to make; and their agreement on the subject is the law of the case. The denial in the answer of each and every allegation in the petition would certainly seem, so far as words are concerned, to put in issue the performance in this respect, as in every other, on the part of the plaintiff, alleged in the petition. But counsel for the plaintiff in error contends that such is not its legal effect under the Code of Iowa, which also regulates the pleading and practice in such cases in the courts of the United States sitting in that state.

By section 2715 of the Iowa Code, it is provided that, 'in pleading performance of conditions precedent in a contract, it is not necessary to state the facts constituting such performance, but the party may state generally that he duly performed all the conditions on his part;' and section 2812 enacts that every material allegation in a pleading not controverted by a subsequent pleading shall, for the purposes of the action, be deemed true. Section 2717 is as follows: 'If either of the allegations contemplated in the three preceding sections is controverted, it shall not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated.' The two other sections referred to are sections 2714 and 2716, the latter of which provides that 'a plaintiff suing as a corporation, partnership, executor, guardian, or in any other way implying corporate, partnership, representative, or other than individual capacity, need not state the facts constituting such capacity or relation, but may aver generally, or as a legal conclusion, such capacity or relation; and where a defendant is held in such capacity or relation, a plaintiff may aver such capacity or relation in the same general way.' The application of the rule prescribed in section 2717 to the cases described in section 2716 has several times been considered and adjudged by the supreme court of Iowa. In the most recent of them to which our attention has been called, (Mayes v. Turley, 60 Iowa, 407, S.C.. 14 N. W. Rep. 731,) the plaintiff averred in his petition that he was the duly appointed, qualified, and acting administrator of the estate, etc. The defendants' answer said they denied each and every allegation in said petition contained. It was held by the court that the jury should have been instructed that, the denial being insufficient, they could not take notice of it, and they should therefore consider it admitted that the plaintiff was duly appointed and qualified administrator. So, in Stier v. City of Oskaloosa, 41 Iowa, 354, it was held that a bare denial, in the answer of the averment to the petition, that the defendant was a corporation, does not put that fact in issue. To the same effect are the following cases: Coates v. Gatena & C. U. R. Co. 18 Iowa, 277; Blackshire v. Iowa Homestead Co. 39 Iowa, 624; Gates v. Carpenter, 43 Iowa, 152. No distinction can be drawn between the application of the rule to the cases mentioned in section 2716 and that specified in section 2715; and upon such a question we feel bound to adopt the construction of the state Code which has been established by the decisions of the supreme court of Iowa. It follows, therefore, that the circuit court erred in its instruction to the jury that the alleged performance on the part of the plaintiff below of the condition of the contract which required a deposit of money in the Union Stock-yard National Bank was a matter in issue and requiring proof, and in not instructing them, as requested by the plaintiff, that it was to be taken as a fact, without proof, upon the admission in the pleadings. For this error the judgment of the circuit court is reversed, and the cause remanded, with instructions to award a new trial.


text: Talk:Halferty v. Wilmering/Opinion of the Court


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Page:Popular tales from the Norse (1912).djvu/513

 Rh "What is it my brother says?" asked the good lassie.

"He says you must throw your casket overboard," said the stepmother.

"Well, when my brother says it, I must do it," said the lassie, and overboard went the casket.

When they had sailed a bit farther, the brother pointed again across the lake.

"There you see the castle we're going to."

"What is it my brother says?" asked the lassie.

"He says now you must throw your little dog overboard," said the stepmother.

Then the lassie wept and was sore grieved, for Little Flo was the dearest thing she had in the world, but at last she threw him overboard.

"When my brother says it, I must do it, but heaven knows how it hurts me to throw you over, Little Flo," she said.

So they sailed on a good bit still.

"There you see the King coming down to meet us," said the brother, and pointed towards the strand.

"What is it my brother says? " asked the lassie.

"Now he says you must make haste and throw yourself overboard," said the stepmother.

Well, the lassie wept and moaned; but when her brother told her to do that, she thought she ought to do it, and so she leapt down into the lake.

But when they came to the palace, and the King saw the loathly bride, with a nose four ells long, and a snout three ells long, and a pine-bush in the midst of her forehead, he was quite scared out of his wits; but the wedding was all ready, both in brewing and baking, and there sat all the wedding guests, waiting for the bride; and so the King


text:
Thayer v. Life Association of America

J. H. Gordon and C. C. Cole, for appellants.

R. G. Barr, for appellees.

HARLAN, J.

title: Thayer v. Life Association of America


text: Talk:Thayer v. Life Association of America


text:
Thayer v. Life Association of America/Opinion of the Court

By a duly-recorded deed of August 22, 1872, Otis A. Thayer and William T. Thayer conveyed to Edward B. Knight certain real estate in Kanawha county, state of West Virginia, in trust, to secure the payment of several notes executed by the grantors to the Life Association of America, a corporation created and organized under the laws of the state of Missouri. The deed was upon the condition that if the notes were paid at maturity, and the covenants therein contained were kept and performed, the property should he released; but if the notes, or any of them, were not paid as stipulated, or if said covenants were not fully kept, then the deed should remain in full force, with the right in the trustee to take immediate possession of the property; that after such default the grantors and their heirs and assigns should hold the premises conveyed as tenants only of the trustee from month to month, and the latter might proceed to sell the property at public auction to the highest bidder, on the terms and conditions prescribed by the laws of the state, first giving 20-days' notice of the time, terms, place of sale, and the property to be sold, by advertisement in some newspaper; upon such sale to execute and deliver a deed in fee-simple of the property sold; receive the proceeds of sale, out of which shall be paid, first, the cost and expenses of the trust; next, all amounts expended as aforesaid for taxes and other purposes, with interest, as above mentioned; and then, the amount that may remain unpaid on the notes. The deed also provided that any failure to pay the notes at their respective maturities, or to keep its covenants, should cause all of the notes to become and be considered due and payable, for the purpose of the trust, at the time of such default. Knight, the trustee, under the authority given by the deed, having advertised the property for sale on the twenty-fifth of April thereafter at public auction to the highest bidder, for the purpose of satisfying the debt secured by it to the Life Association of America, this suit was commenced in the circuit court of Kanawha county, West Virginia, by the grantors in the deed of trust, against the Life Association of America, William S. Relfe, superintendent of the department of insurance of the state of Missouri, and Edward B. Knight, trustee. The bill shows that by a decree of the circuit court for the county of St. Louis, Missouri, the Life Association of America was dissolved, and its assets placed in the hands of the defendant Relfe, as superintendent of the insurance department of that state. It sets out the consideration of the before-mentioned notes, the execution of the deed of trust, and the proposed sale of the property, by the trustee, at the instance of Relfe. The complainants contend, upon grounds which need not be here stated, that the trust debt is paid, and that there is a balance due them of $91.63. Claiming that the sale of the trust property would be unjust and inequitable, they ask that the trustee be enjoined from selling it; also, that the trust debt be decreed to be extinguished.

A temporary injunction against the sale was issued. The due time the defendants the Life Association and Relfe appeared and filed their joint petition and bond for the removal of the cause into the circuit court of the United States. The petition avers that at that time, as well as at the commencement of the action, the complainants were citizens of West Virginia, while the Life Association of America and Relfe were citizens of Missouri. There is no allegation of the citizenship of Knight, the trustee. He is alleged, in the petition for removal, to have no interest in the suit, and to be a nominal party only. The right of removal was recognized by the state court. Subsequently, in the circuit court of the United States, a demurrer to the bill was sustained; and, no amendment having been made, the suit was dismissed.

The trustee was not a merely nominal party. The object of the suit was to prevent him from selling the property under the power given by the deed of trust. The relief asked could not have been granted without his being before the court. There was no separable controversy between the complainants and the other defendants, touching the sale of the property, which could have been determined between them without the presence of the trustee. He was therefore, an indispensable party defendant. Whether he had the right and was under a duty to sell the property was the controversy in which all the parties to the suit were interested. His citizenship, therefore, is material in determining whether the suit was one of which the circuit court could take cognizance. The record discloses nothing upon that point. He may be-and we infer from the recitals of the deed of trust that he is-a citizen of the same state with the complainants. If such be the fact, the cause was not one that could be removed. As the trustee and the complainants are on opposite sides of the real controversy in relation to the sale of the property, and since it does not appear, affirmatively, that the circuit court had jurisdiction, by reason of the citizenship of the parties, the decree must be reversed, with directions-unless such jurisdiction, upon the return of the cause, shall be made to appear-to remand the suit to the state court. Coal Co. v. Blatchford, 11 Wall. 172; Gardner v. Brown, 21 Wall. 36; Ribon v. Railroad Co. 16 Wall. 446; Knapp v. Railroad, 20 Wall. 117; Grace v. ''American Ins. Co.'' 109 U.S. 278; S.C.. 3 SUP. CT. REP. 207; ''Mansfield, C. & L. M. Ry. Co. v. Swan'', 111 U.S. 381, 382; S.C.. 4 SUP. CT. REP. 510; American Bible Soc. v. Price, 110 U.S. 61; S.C.. 3 SUP. CT. REP. 440; Barney v. Latham, 103 U.S. 205; Blake v. McKim, Id. 336.

It is so ordered.


text: Talk:Thayer v. Life Association of America/Opinion of the Court


text:
St. Paul Company v. Winona & St. Peter Railroad Company

E. C. Palmer, for plaintiffs in error.

''Thos. Wilson'', for defendant in error.

MILLER, J.


text: Talk:St. Paul Company v. Winona & St. Peter Railroad Company