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Goddard v. Foster/Opinion of the Court

ERROR to the Circuit Court for the District of New York; the case being thus:

In June, 1843, G. J. Foster and W. W. Goddard entered into an agreement, in writing, under seal, by which Foster agreed to go to the west coast of South America, and there reside as Goddard's agent for five years, selling the outward cargoes, purchasing return cargoes, collecting and fowarding information, and attending to the business and dispatch of the defendant's ships, giving his whole time to the business, in consideration of one-tenth of the net profits at the end of the term, or $1000 per annum if the one-tenth of the profits amounted to less than that sum.

Under this agreement Foster went to the west coast of South America, and there resided during the five years, performing his part of the agreement, and at its expiration, in 1848, returned to Boston, where the parties made a new agreement in writing and under seal, dated May 7th, 1849, by which Foster agreed to return to the west coast, upon a similar employment, giving his whole time to Goddard's business in consideration of 'one-quarter of the net profits of Goddard's business in that trade, that he (Foster) shall have conducted to completion,' to be paid to him on his return. This agreement provided that Foster was to leave in Goddard's hands his share of the profits under the former agreement; that Foster might withdraw from this arrangement, 'which he is at liberty to do at any time, by giving said Goddard so much notice that any voyage he may have commenced previous to receipt of such advice, shall receive the full benefit of all said Foster's services to its final accomplishment, and not otherwise.' It also provided that Goddard might 'annul the agreement whenever he may choose to do so,' and that Foster should be liable 'to the full extent of his interest and means for all losses in the business, and for all risks and casualties attendant thereon.'

Foster, under this agreement, returned to the coast and continued to transact the business required of him, and on the 22d of February, 1850, wrote to Goddard that he had determined to join the house of Alsop & Co. on the 1st of January, 1851. In this letter he said:

'I will manage your business as usual until the 31st of December, which will afford you ample time to make your arrangements for sending some one out, if you be inclined.'

On the 13th of April, 1850, Goddard replied:

'I am very glad to learn your decision to join the house, it being what I would have advised for your own interest.'

Goddard's reply was received by Foster May 29th, 1850.

After sending this letter, Goddard loaded and dispatched from Boston the ship Harriet Erving, upon a voyage styled hereinafter 'her third voyage.' She left Boston on the 21st of August, arrived at Valparaiso on the 8th of December, and sailed thence December 27th, for points on the coast, to complete her cargo, and thence to Boston.

From the inception of this voyage, Goddard advised Foster by letter of his intentions in relation to her outward and return cargoes, and instructed him fully as to what he, Foster, should do on the coast in relation to the same.

The cargo was consigned to Foster, 'or, in his absence, to Alsop & Co.'

When the ship sailed from Boston, Goddard instructed the captain by letter as follows:

'I wish you to proceed in her with all possible dispatch direct to Valparaiso, where my agent, Mr. G. J. Foster, or, in his absence, Messrs. Alsop & Co., will dispose of your outward cargo, provide for the wants, and direct your further movements.'

Foster concluded the whole business of this voyage in the same manner in which he had done that of previous voyages, prepared and forwarded to Goddard a note or memorandum of cargo suitable to be sent to the coast, purchased and had in readiness for the ship her return cargo, and dispatched her from the coast, directed the sale of her outward cargo, and was in constant communication with Goddard in relation thereto.

He joined the house of Alsop & Co. on the 1st of January, 1851. At that time there had been sold of the outward cargo $96,000, and there was afterwards sold $150,000. The entire service had been performed, so far as the homeward cargo was concerned, and nine-tenths of his whole services in relation to the voyage had been performed.

After joining the house of Alsop & Co. he completed the business of the voyage by directing, as before, the sale of the remainder of the cargo. This was done with the knowledge of and, as it appeared, without objection on the part of the other partners in the house of Alsop & Co.

After joining the house, he sent a part of the cargo to other points on the coast for a better market, in the exercise of his discretion as Goddard's agent, as he had done with previous cargoes, which Alsop & Co. never did for any of their correspondents, unless expressly authorized. The sales between January 1st and June 30th, at Valparaiso and Lima, amounted to $135,000, and the remainder, about $15,000, was sold during the years 1851, 1852, and 1853.

The sales of the outward cargoes and the purchases of the homeward cargoes were made by Alsop & Co., who advanced the necessary funds, and charged and received a commission therefor.

Foster advised Goddard, by private letter of February 25th, 1851, of the sales he was making of the outward cargo, and that he should work off part of the goods 'through Callao,' the port of Lima.

Alsop & Co. rendered accounts of the sales at Valparaiso and Lima to Goddard.

In November, 1851, one Erving arrived on the coast, to act as Goddard's agent in the same business, in subsequent voyages. He took no part in the unfinished business of this voyage.

Foster returned to the United States in 1856, when Goddard expressed himself prefectly satisfied with everything he had done in his business.

On the 1st of May, 1857, Foster filed a bill in equity against Goddard in the Circuit Court for the District of Massachusetts, for an account, and to recover his share of the profits under the two agreements of 1843 and 1849. Goddard having appeared and answered, a decree for an account was entered, and an account was taken before a master. Upon that accounting Foster claimed, under the agreement of May 7th, 1849, a quarter of the profits of the voyage of the Harriet Erving, on the ground that by a subsequent agreement of the parties, shown by their correspondence, it was to be considered as included in that agreement, and that it was substantially brought to a completion before January 1st, 1851. The master so decided, and reported as due to Foster for his share in the profits of this voyage, $21,943. Upon exceptions to the master's report, the circuit judge disallowed this item, holding that this voyage of the Harriet Erving was not covered by the agreement between the parties of May 7th, 1849, and upon appeal this court affirmed (and upon the same ground) the final decree, whereby this item was disallowed in that suit. Goddard satisfied the final decree in that suit.

In this state of things Foster sued Goddard in assumpsit for services rendered by him in this voyage of the Harriet Erving.

The first count was on a special agreement to pay one-fourth of the profits of the outward and homeward voyages, being $23,600.44, with interest from March 1st, 1858. The second, on a promise to pay a reasonable compensation. The third, on a promise to pay a reasonable compensation for services to January 1st, 1851. The fourth and fifth counts were the common counts of indebitatus assumpsit and quantum meruit. The damages were laid at $50,000.

The plea was the general issue with notice of defences:

1. A former recovery by the same plaintiff against the same defendant in the suit in equity in the Circuit Court for the District of Massachusetts, brought for an account under the agreement between the parties of May 7th, 1849, and that the defendant's services, if any, now sued for, were rendered under that agreement.

2. The statute of limitations.

Pursuant to the notice the defendant offered in evidence the record in the equity suit as a bar to the pending action, but the court rejected the evidence.

He also offered the same record in evidence as a bar to all claim in the action for services rendered for him before the close of the year in which the plaintiff had given notice of his withdrawal from the second written agreement. But the court rejected the evidence as inadmissible even for that purpose.

Evidence was offered by the plaintiff of the value of his services, to which the defendant objected, insisting that the services of the plaintiff in respect to that voyage, if any, were rendered under the written agreement, but the court ruled that the services shown were outside of that agreement, and admitted the evidence.

To all these rulings the defendant excepted.

The court having charged that neither party was to suffer in any way from the lapse of time, and thus disposing of the plea of the statute of limitations, charged further among other things—

1st. That the plaintiff could not recover under the first count of the declaration, nor any part of the profits of the voyage.

2d. That the plaintiff was entitled to recover such sum as upon the evidence the jury might regard to be the reasonable quantum meruit value of his services.

'That includes a consideration by you of what his services were, the entire scope of the trade, and Mr. Foster's qualifications for those services at the time he rendered the services in reference to this voyage, and the consideration of how much these services were in bulk or in value before the 1st of January, 1851, and the consideration of the extent of these services after that date, and whether they are to be diminished after by any payment or allowance which ought to be charged against Mr. Foster because of any compensation he may have received as a member of the firm of Alsop & Co. The whole question is one of fact for you to pass upon as men of judgment and intelligence, and upon the evidence, applying your best faculties to it.

'If you arrive at any sum which you regard as proper for the value of these services, then Mr. Foster is entitled to interest on that sum at the rate provided by law of New York, 7 per cent. per annum, from the time of the commencement of this suit.'

3d. That there was an agreement between the parties for the rendering of some service distinct and independent from that of May 7th, 1849; that that agreement as matter of law, as one drawn from correspondence between the parties, the jury were bound to find, and that there was an agreement between the parties for the performance, by Mr. Foster, of such services as he rendered in respect of the third voyage of the Harriet Erving, to be compensated for at such rates as these services reasonably deserved.

To the second and third of the charges, as above given, the defendant excepted; no exception being taken by either party to the first. The jury found for the plaintiff $29,407, and the defendant brought the case here for review.

The reader has doubtless seen that, throwing out the question how far the meaning of the old contract had been settled by the decision in the equity suit in the Circuit Court for Massachusetts, and the question of interest, there were really but two questions in the case.

I. What did the agreement as made by the correspondence (Foster's letter of February 22d, 1850, and Goddard's reply, being chief features in it) mean?

Did it mean, as Goddard, the defendant, insisted, that Foster would perform all the duties required by the old contract on the terms and for the compensation specified in it, that is to say, would perform them under that contract; a construction which, as this old contract gave nothing but for 'business conducted to completion,' would give nothing for any service performed before December 31st, 1850, as the voyage in question was not so conducted, to a conclusion, before that date; while for any service performed after that date the argument was susceptible of being made that all that the plaintiff did he did as a member of the firm of Alsop & Co., and was paid by the commission given to that house.

OR, as Foster contended it was, was the meaning of the agreement as if he, Hoster, had written—

'In the interval, before the arrival of any new agent to represent you, I will perform the same services for the new voyages, not covered by the contract of May 7th, 1849, that I have rendered in the voyages covered by the contract and that your new agent would perform were he here?'

a construction which would naturally imply that the new services were to be paid for at such reasonable rates as they were fairly worth.

II. Was the question 'whether there was an agreement between the parties, shown by the correspondence, for the rendering of the services in question, distinct and independent of the agreement of May 7th, 1850, a question of law to be determined by the court, or a question for the jury?'

Mr. D. D. Lord, for the plaintiff in error:

I. As to the services rendered prior to the 31st of December, 1850.

1. The letter of 22d February fixed the termination of the old contract for the 31st December, not only without notice that any services rendered in the interval were to be excluded from its terms, but with the express assurance that the business (including, of course, all of it) would, during this term, be managed 'as usual.'

Even though the plaintiff could not share in the profits of this voyage of the Erving, he was, nevertheless, bound by his contract to attend to all her business. The terms of his contract expressly obliged him to attend to all business, and excluded him from the profits of such as he did not complete. To imply an agreement to pay for such services rendered under the contract, because the contract itself provided no such compensation for them, is virtually to set that contract aside. The contract was, when made, very advantageous for the plaintiff. He could easily protect himself against any casual disadvantage caused by the late arrivals of new adventures, by the fixing, as he had a right to do, the time and terms of his withdrawal. But the chance of any loss from this provision was compensated by the large share allowed on completed business; it was more than double his compensation under the agreement of 1843.

All Foster's services were rendered to the Erving without authority, instruction, or notice from the defendant, except such as was to be inferred from the contract itself; and he must have understood that these services were rendered in performance of the agreement of 7th May, 1849; because, in his former action on this contract, the bill in equity, he made them the ground of a claim for a share in the profits of the adventure.

If the notice of 22d February is susceptible of a construction limiting the plaintiff's duties to adventures previously commenced, it is at least equally capable of a construction binding him to manage all the defendant's business on the terms of the contract; and as the plaintiff might have avoided the ambiguity, this latter construction should be adopted.

2. The sale of so much of the Erving's outward cargo as was made after 31st December, was not a service for which the plaintiff can claim any compensation, beyond what was due to the firm of which he had become a member. Alsop & Co. had accepted a consignment of the cargo, and this acceptance entitled the defendant to the full services of every partner in the house. If the plaintiff, after becoming a partner, had the exclusive charge of these sales, it was only as attending to that branch of business of the house; he is not shown to have rendered any services in disposing of that part of the cargo which was sold at Valparaiso, which he did not perform in reference to other consignments from other parties. But, however special or valuable his services may have been, they did not exceed his duties under his newly assumed office of consignee, and were compensated by the large commission paid to Alsop & Co., in which he participated. To assume that he was acting in a merely personal capacity, as agent of Goddard, would be to suppose that he was acting contrary to his letter of 22d February, and contrary to his obligations to his new house.

II. The court took from the jury the decision of the point whether a contract different from the old one existed. The matter depended on a correspondence, and on various facts of whose effect the jury was the judge.

Mr. W. M. Evarts, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

Compensation for services rendered by the plaintiff, as agent for the defendant in conducting a certain commercial adventure at his request and for his benefit, is claimed by the plaintiff in the present suit, which is an action of assumpsit for the value of the services rendered.

Prior services of like kind, in transactions of a similar character, had been rendered by the plaintiff for the same defendant, to which, though not embraced in this suit, and to the litigation which grew out of the same, it becomes necessary to advert in order to a clear understanding of the present controversy.

Those prior transactions had their origin in two written agreements between the parties. By the first agreement, dated June 24th, 1843, the plaintiff engaged, among other things, to proceed at once to Valparaiso, and there to remain for the term of five years, and to devote himself, for the whole time, exclusively to the business of the other party, such as the sale and purchase of cargoes, collecting freight-moneys, procuring return freights, eliciting orders for the purchase and shipment of goods, effecting the sale of vessels, and collecting and forwarding all such information as he could obtain respecting the trade. In consideration of which the defendant engaged that he, the plaintiff, shall, at the expiration of five years, be entitled to one-tenth of the net profits of his business in that trade, subject to certain deductions for interest, cost, and expenses, as therein specified. Under that agreement the plaintiff proceeded to Valparaiso, where he continued to reside during the period prescribed, and well and truly performed all things required in the agreement. Having performed the agreement, the plaintiff returned to Boston, where the defendant resided, and on the 7th of May, 1849, they entered into the second agreement, in which the plaintiff engaged to proceed at once to the west coast of South America, and to devote his whole time in those parts, as also in Mexico and California, exclusively to the management of the business of the defendant in those countries, such as the sale and purchase of merchandise, or any other property, collecting freight-moneys, procuring freights and consignments of goods, eliciting orders for the purchase and shipment of property, investing money, drawing and negotiating bills of exchange, and forwarding all such information as he could obtain respecting the trade. In consideration of which the defendant engaged that he, the plaintiff, 'shall, on his return, be entitled to one-fourth of the net profits of his business in that trade, that he (the plaintiff) shall have conducted to completion,' subject to certain deductions for interest, and all costs and expenses incurred, both at home and abroad, in prosecuting the business, including port charges and the expense of sailing and keeping in repair the vessels employed, the defendant having the right to purchase, charter, freight, and sell the vessels designed for the trade at his option, charging or crediting in the general account the profit or loss in every such transaction. What funds the plaintiff had, less two thousand dollars, he engaged to leave in the hands of the defendant, which he agreed not to abstract, nor any portion of the profits, 'until he shall see fit to withdraw from the present arrangement, which he is at liberty to do at any time by giving the defendant so much notice that any voyage he may have commenced, previous to the receipt of such advice, shall receive the full benefit of all of the plaintiff's service to its final accomplishment, and not otherwise.' Pursuant to the agreement the plaintiff proceeded without delay to the place designated, and conducted the described business until the twenty-second of February of the next year, when he gave the required notice to take effect at the close of the year; and that on the first of January of the succeeding year he should join the house of Alsop & Co.; and he asked for an account. On the thirteenth of April of the same year, the defendant acknowledged the receipt of the letter written by the plaintiff, giving the required notice, approving the decision the plaintiff had made to join that house, and promised to comply with his request 'as speedily as possible.'

Briefly described, the general mode of conducting the business under each agreement was by adventures and shipments of goods, procured at Boston by the defendant and consigned to the plaintiff, by whom the merchandise was sold and the proceeds invested in other merchandise which was consigned to the defendant, who sold the return cargoes, and he kept the books and vouchers, showing the exact profit or loss on each adventure.

Large profits were earned in the business, and at the expiration of the period limited for the continuance of the agreement, a large sum was due to the plaintiff in the hands of the defendant, where it had been allowed to remain without his rendering any account. Repeated requests for an account having failed to secure one, the present plaintiff, on the first day of May, 1857, instituted a suit in equity in the Circuit Court for the District of Massachusetts, and the cause having proceeded to final hearing, and the court having entered a decretal order in favor of the plaintiff, sent the cause to a master to ascertain what the plaintiff was entitled to recover. He made a report in which he allowed, among other matters, the claim embraced in the present suit.

Ten exceptions were filed by the present defendant to that report, but it will not be necessary to refer to any one of them, except the tenth, which is substantially as follows: For that the said master has allowed the complainant one-fourth of the profits made by the respondent in the use and employment of a vessel called the Harriet Erving and her cargo during her third voyage, which was not sought to be recovered by the complainant in his original or amended bill, nor was the vessel or cargo or the profits resulting therefrom during the said voyage, embraced in the said second agreement, nor in any contract or agreement made by the respondent with the complainant, but were solely and exclusively at the profit and loss of the respondent.

Two of the objections taken to the finding of the master in respect to that voyage, as expressed in that exception, were sustained by the Circuit Court: (1.) That the voyage was not within the written agreement, as it was not commenced when the plaintiff gave the notice of his intention to withdraw from the arrangement nor when the defendant, on the thirteenth of April following, acknowledged the receipt of the notice and expressed his approval of the step taken by the plaintiff. (2.) That the proofs were not sufficient to warrant the conclusion that the parties ever agreed that this voyage should be settled and adjusted within the principles of the written agreement; and if they did so agree, that there was no proper allegation in the bill to support such a decree.

Governed by those views the Circuit Court sustained the exception to the report allowing the claim, and on appeal to this court the decree of the Circuit Court sustaining the same was affirmed.

Payment of the claim being refused, the plaintiff, on the fourteenth of August, 1862, instituted the present suit in the Court of Common Pleas for the city and county of New York, where he resides, to recover compensation for his services rendered in respect to that voyage, and the defendant, being a citizen of the State of Massachusetts, removed the cause into the Circuit Court for the first-named district. By the record it appears that the declaration contained a count on a special agreement to pay one-fourth of the profits earned by the ship on the voyage not adjusted in the prior suit, but it will not be necessary to remark upon that count, as the court ruled and instructed the jury that the plaintiff could not recover under that count, nor for any part of the profits of the voyage. Apart from that the declaration also contained four other counts, of which the second and third alleged a promise to pay a reasonable compensation for the services rendered, and the fourth and fifth were the common counts of indebitatus assumpsit, and quantum meruit. Service was made and the defendant appeared and pleaded the general issue, and gave notice that he would give evidence of a former recovery by the plaintiff against the defendant in the said suit in equity in the Circuit Court, founded upon the written agreement, and that the services of the plaintiff, if any, as claimed in the suit, were rendered under the same agreement. He also gave notice that he would give evidence to prove that the alleged causes of action did not accrue within six years next before the commencement of the action. Testimony was introduced on both sides, and the jury, under the instructions of the court, returned a verdict in favor of the plaintiff for the sum of twenty-nine thousand four hundred and seven dollars and thirty-seven cents, and the defendant excepted and removed the cause into this court. Exceptions were taken by the defendant both to the rulings of the court in admitting and rejecting evidence, and to the refusal of the court to instruct the jury as requested by the defendant, and to the instructions which the court gave to the jury at the request of the plaintiff. Pursuant to the notice given by the defendant he offered in evidence the record in the equity suit as a bar to the pending action, but the court rejected the evidence and the defendant excepted. He also offered the same record in evidence as a bar to all claim in the action for services rendered for the defendant before the close of the year in which he gave the notice of his withdrawal from the second written agreement, but the court rejected the evidence as inadmissible even for that purpose, and the defendant excepted to the ruling. Evidence was offered by the plaintiff of the value of his services, to which the defenendant objected, insisting that the services of the plaintiff in respect to that voyage, if any, were rendered under the written agreement, but the court ruled that the services shown were outside of that agreement, and admitted the evidence, t which the defendant excepted.

Evidently these three rulings depend upon the same considerations, and they present one of the most important questions involved in the bill of exceptions. Valuable services were rendered by the plaintiff in relation to that adventure. Conceding that, still it would follow, if, by the true construction of the instrument, he was required to perform the services under that agreement, that the record of the former suit between the parties is a bar to the present action. Both parties admit that proposition, but if the written agreement by its true construction did not require him to render the services in question, then the record of the former suit is no bar, because in that view of the case the services rendered and for which compensation is sought in the present action were not in issue in the prior litigation, as the causes of action in the two suits are wholly distinct.

Enough has already been remarked to show that the defendant himself was of the opinion in the former suit that the services were not rendered under the written agreement, and that the Circuit Court came to the same conclusion, which was in all things affirmed by this court. Much discussion of the question, therefore, would seem to be unnecessary, as the better opinion is that the question is conclusively settled by the decree in the last-named case. Suppose, however, the question is an open one and is unaffected by those decisions, still the court is of the opinion that the view taken by the defendant in his exception to the master's report in the former suit is correct.

By the terms of the written agreement it is very clear that the plaintiff was not required to render any service in any voyage to be commenced after the receipt by the defendant of the notice of the plaintiff withdrawing from the arrangement, as more fully appears from the mode prescribed of giving the notice, and its effect, as stipulated in the instrument. Such funds as the plaintiff had, less $2000, he was to leave in the hands of the defendant, and the stipulation was that he should not abstract those funds, nor any portion of his profits, until he should see fit to withdraw from the arrangement, which he was at liberty to do at any time by giving the defendant so much notice that any voyage 'he may have commenced, previous to the receipt of such advice, shall receive the full benefit of all the plaintiff's services to its final accomplishment.' Voyages commenced before the notice of withdrawal was given were within the agreement, whether the vessels had arrived at their port of destination or not, but the plaintiff was not required to render any service under that agreement in relation to voyages projected subsequently, as he was to have no interest in such adventures, not being entitled to any part of the profits nor compelled to share in the loss. One-fourth of the profits of the business 'conducted to completion' belonged to the plaintiff, and in respect to all such voyages he was liable, 'to the full extent of his interest and means, for all the losses that may be made in the business, as also for all the risks and casualties attendant thereon.'

Taking these two provisions of the agreement together, it is quite clear that the former decisions in the equity suit were correct, as they show that the plaintiff was allowed to withdraw at any time, on giving the required notice, subject to this reasonable and necessary limitation, that as he was to be compensated by a share in the profits of the adventures the required notice should be such that he would remain long enough to complete the business in every voyage from which his compensation was to come. Where profits were made in a voyage, conducted to completion, he was entitled to one-fourth of the profits, but if the voyage resulted in a loss, he was liable to the full extent of his interest and means for his proportion of the same, showing very plainly that his agency under the written agreement was limited to voyages commenced before the notice was given, as no one, it is presumed, will contend that he was required to render services without compensation, and to be liable for a share of the loss in an adventure in which he had no interest.

Opposed to this view is the suggestion that the plaintiff agreed to devote his whole time to the business, but the court is of the opinion that the word business, as used in that connection, must be limited to the period of the full employment of the plaintiff before the notice of withdrawal was given, as his undertaking subsequent to that notice was merely to conduct the business, meaning the business of the voyages previously commenced, to completion, or, as expressed in the phrase describing the character of the notice to be given, that he shall give 'so much notice that any voyage he, the defendant, may have commenced previous to the receipt of such advice, shall receive the full benefit of all the plaintiff's services to its final accomplishment.'

Viewed in the light of these suggestions, it is plain, we think, that the word business, as used in the first clause of the agreement, was not intended to have any larger or different meaning from the other parts of the instrument which describe, in detail, the nature of the services he was required to perform. Sufficient has been remarked to show that the exceptions under consideration must be overruled.

Instructions were also given by the court to the jury in respect to the right of the plaintiff to recover upon the other counts, to many of which the defendant also excepted. Those deemed material to be noticed in this connection, are in substance and effect as follows: (1.) That the plaintiff could not recover under the first count of the declaration, nor any part of the profits of the voyage. (2.) That he might recover reasonable compensation under the other counts for such services as he rendered, if he satisfied the jury by the evidence in the case that he was employed by the defendant to perform service in respect to that voyage, by an agreement distinct and independent of the said written agreement, and that the jury, if they find for the plaintiff, should allow interest upon the amount at the rate of seven per cent. from the commencement of the suit. (3.) That the evidence of the agreement, consisting of correspondence between the parties, the question whether it amounts to an agreement or not is a question of law, and that the court instructed the jury that there was an agreement between the parties for the performance by the plaintiff of such services as he rendered in respect to the voyage in question, to be compensated for at such rates as those services reasonably deserved.

Before examining the instructions, some brief reference must be made to the evidence. In the letter giving notice of his intention to withdraw from the arrangement, the plaintiff stated that he would manage the business of the defendant until the close of the same year, and it appears that the defendant subsequently loaded and dispatched the ship, whose third voyage is in question, consigning her to the plaintiff. She left Boston on the twenty-first of August, arrived at Valparaiso on the eighth of December, and sailed thence on the twenty-seventh of the same month for Coquimbo and other points on the coast to complete her cargo, and thence returned to Boston, her port of ultimate destination.

From the inception of the voyage, the defendant advised the plaintiff by letter of his intentions in respect to her outward and return cargoes, and instructed him fully as to what he, the plaintiff, should do on the coast in relation to the adventure. He consigned the cargo to the plaintiff, or, in his absence, to Alsop & Co., as appears by the bill of lading, and when the ship sailed he instructed the master to proceed with all possible dispatch direct to Valparaiso, informing him that the plaintiff, as his agent, or, in his absence, the firm named in the bill of lading, would dispose of the outward cargo, provide for the wants of the ship, and direct his further movements.

Suffice it to say the plaintiff concluded the whole business of the voyage in the same manner as he had conducted the business of previous voyages,-that is, he prepared and forwarded to the defendant a memorandum for a cargo suitable to be sent to that market, purchased and had in readiness for the ship her return cargo, and dispatched her from the coast and directed the sale of her outward cargo, and was in constant correspondence with the defendant in relation to the adventure from its inception to its final consummation.

Error is assigned as to the second and third instructions.

1. Argument to show that the second is correct is hardly necessary, as it is quite clear that the plaintiff is entitled to recover a compensation for his services, if he proved that the services were rendered at the request of the defendant under some agreement wholly distinct from the written agreement embraced in the prior litigation. Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what in good conscience he is bound to pay to the plaintiff, consequently where the case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation.

2. Next error assigned is that the court erred in charging the jury that the correspondence showed an agreement between the parties distinct from the prior written agreement which was litigated in the equity suit, but the court is of the opinion that the charge was correct, as it is well-settled law that written instruments are always to be construed by the court, except when they contain technical words, or terms of art, or when the instrument is introduced in evidence collaterally, and where its effect depends not merely on the construction and meaning of the instrument, but upon extrinsic facts and circumstances, in which case the inference to be drawn from it must be left to the jury. Where the question was whether there was a contract between two parties to be deduced from correspondence, Parke, Baron, said: 'The law I take to be this: that it is the duty of the court to construe all written instruments. If there are peculiar expressions used in the instrument, which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what is the meaning of those expressions, but it is for the court to decide what is the meaning of the contract.' Contracts are frequently made by correspondence between the parties, and in such a state of the evidence it was held, in the case of Begg v. Forbes, that the question was exclusively for the court; Jervis, C. J., remarking, 'Surely the construction of written documents is for the judge, whether many or few in number.' Exceptional cases arise where the contract rests partly in the correspondence and partly in oral communications, in which it is held that the question whether or not there is a contract is a question for the jury. Courts of justice, however, are not denied the same light and information the parties enjoyed when the contract was executed, but they may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described.

Proof of service at the request of the defendant was full and uncontradicted, and the Circuit Court instructed the jury that the plaintiff was 'entitled to recover in the case such sum as the reasonable quantum meruit value of his services, upon the evidence, you may regard to be proper;' adding that the instruction 'includes a consideration by you of what his services were, the entire scope of the trade, and his qualifications for those services at the time he rendered the same, in reference' to that voyage, and the consideration of how much those services were in bulk or in value before the close of the year, and the consideration of his services after that date, and whether they are to be diminished after by any payment or allowance which ought to be charged against the plaintiff on account of any compensation he may have received as a member of the firm to which he belonged; and stating, in conclusion, to the effect, that the court left the whole case to the jury as a question of fact for their determination.

Most of the other exceptions to the charge of the court are shown to be without merit, by that instruction, which submitted the whole evidence to the jury.

Beyond all question the plaintiff was entitled to interest from the commencement of the suit, and it is not perceived that there is any error in the rule prescribed as to the rate, as it is the rule of the lex fori, especially as no rate is fixed in the contract and no place designated for its performance.

Separate examination of the numerous other exceptions as to the ruling of the court, in admitting and rejecting evidence, will not be attempted, as none of them are of any general importance. Suffice it to say they have all been examined and the court is of the opinion that they must severally be overruled, and that there is no error in the record.

JUDGMENT AFFIRMED.

Mr. Justice STRONG dissented from this judgment and from the preceding opinion respecting the construction and legal effect of the written agreement between the parties.

Mr. Justice HUNT also dissented.

title: Goddard v. Foster/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Waldegrave, James (1715-1768)

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


text: Talk:Goddard v. Foster/Opinion of the Court


text:
Williams v. Baker Cedar Rapids Railroad Company

[Though the two cases here reported were decided in order of time prior to that of the Homestead Company v. Valley Railroad next in order of place (beginning on page 153), and are referred to in it, yet the reader who is not already acquainted with the facts of what is known in Iowa as the Des Moines River land litigation may, possibly, find it as well to read, before reading the cases now immediately given, the later one, beginning, as already said, on page 153, and in which a diagram will assist his comprehension of a topography common to both cases.]

ON appeals from the Circuit Court for the District of Iowa.

These were two suits in chancery, brought originally in the State courts of Iowa, and transferred to the Circuit Court of the United States for that district, to quiet title to real estate. In the first case the complainant was Baker, who held title under the Des Moines Navigation and Railroad Company. The defendant was Williams, and he held under the Cedar Rapids Railroad Company. In the second case, the Cedar Rapids Railroad Company was complainant, and the Navigation and Railroad Company, with others, defendants; and in this suit the complainant set up that suits at law had been commenced against numerous persons, its grantees, which were harassing and expensive, and prayed that its title and the title of its said grantees should be quieted. The defendants in that suit denied the title thus set up, and alleged that their own title, that of the Des Moines Navigation and Railroad Company, was the true title. The court below decided, in both cases, in favor of the parties claiming under the latter title, and in both cases the adverse side appealed to this court.

Messrs. I. Cook and B. R. Curtis, for the title under the Cedar Rapids Railroad Company; Mr. T. F. Withrow, contra, for that under the Des Moines Company.

Mr. Justice MILLER delivered the opinion of the court.


text: Dictionary of National Biography, 1885-1900/Waldegrave, Richard


text: Talk:Williams v. Baker Cedar Rapids Railroad Company


text:
Williams v. Baker Cedar Rapids Railroad Company/Opinion of the Court

The foundations of the title on each side of this controversy rest on acts of Congress, and the decision of the cases requires their construction. The cases are identical, except that as the holder of each of the conflicting titles becomes plaintiff in turn, he is thrown upon the strength of his own title, rather than the weakness of the opposing one.

The title of Baker has its inception in the act of August 8th, 1846, the material part of which is in these words:

'There is hereby granted to the Territory of Iowa, for the purpose of aiding said Territory in improving the navigation of the Des Moines River from its mouth to the Raccoon Fork, so called, in said Territory, one equal moiety in alternate sections of the public lands remaining unsold and not otherwise disposed of, incumbered, or appropriated, in a strip five miles in width on each side of said river, to be selected within said Territory by an agent or agents, to be appointed by the governor thereof, subject to the approval of the Secretary of the Treasury of the United States.'

It was also provided that the lands should become the property of the State of Iowa on her admission as such into the Union, which was soon expected.

The State of Iowa passed laws for the work of improving the navigation of the river, which contemplated a series of locks and dams, and after prosecuting the work for some time under a State board of public works, made a contract with a corporation called the Des Moines Navigation and Railroad Company for the further progress of this improvement. By this contract the lands of the Congressional grant, which constituted the sole fund for making the improvement, were to be conveyed by the State to the company, at fixed prices, as they earned them in the progress of the work.

The Secretary of the Treasury, as the lands were selected by the agent of the State and the selections approved by him, certified the approved lists to the State, and this was, and always has been, considered the appropriate mode of evidencing the title of the State under the grant. The State conveyed by patent to the navigation company the lands so certified as the progress of the work authorized it, according to the terms of the contract. All the lands in controversy here have been so certified to the State by the Secretary of the Treasury, or of the Interior, to which department, on its organization, that matter was transferred.

But in the progress of the work, and after the lands lying between the mouth of the river and the Raccoon Fork had been nearly or entirely exhausted, a question arose in the land department whether the grant included any lands above that point. This was a very important question, for, if it did not, the whole scheme was a failure, much the larger portion of the lands below that point having been entered by individuals before the passage of the act, and the river being quite as long, or longer, above the fork, and within the State, than below.

This question was the subject of opposing decisions by at least three secretaries and as many attorneys-general, and occupied several years of negotiation between the State and the department. At one period of the controversy the lands were all certified to the State by the secretary, Mr. Stuart.

While this controversy was going on between the State of Iowa and the department, Congress passed the act of 1856, which will be more fully considered hereafter as the source of title of the Cedar Rapids Company, by which there was granted to the State of Iowa alternate sections of land for building several railroads across the State east and west, which roads run through the lands we have been speaking of as in controversy under the act of 1846.

In 1857 or 1858, Mr. Litchfield, who had such title as the navigation company could give under the State of Iowa, brought a suit in the Circuit Court of the United States to recover possession of a tract of these lands, in which he was resisted by the Dubuque and Pacific Railroad Company, one of the beneficiaries under the railroad grant of 1856, and that suit coming to this court, it was here held that the original grant did not extend above the Raccoon Fork, and that the acts of the Secretary of the Interior in certifying such lands to the State of Iowa were void and conferred no title, and that Mr. Litchfield had none.

This decision was received as a final settlement of the long-contested question of the extent of the grant. But it left the State of Iowa, which had made engagements on the faith of the lands certified to her, in an embarrassed condition, and it destroyed the title of the navigation company to lands of the value of hundreds of thousands of dollars, which it had received from the State for money, labor, and material actually expended and furnished. What was also equally to be regretted was, that many persons, purchasers for value from the State or the navigation company, found their supposed title an invalid one.

This decision was made and published in 1860, and to remedy the grave evils above mentioned, Congress, on the 2d day of March, 1861, passed a joint resolution in the following words:

'Resolved, That all the title which the United States still retain in the tracts of land along the Des Moines River, and above the mouth of the Raccoon Fork thereof, which have been certified to said State improperly by the Department of the Interior as part of the grant by act of Congress, approved August 8th, 1846, and which is now held by bon a fide purchasers under the State of Iowa, be, and the same is hereby relinquished to the State of Iowa.'

To show still further the intention of Congress to make good to the State as far as possible all that was claimed by her under the original grant, Congress passed an act, approved July 12th, 1862, by which the grant was in express terms extended to the northern boundary of the State, and as some of the lands had been sold by the United States, provision was made for the selection of an equal quantity of lands of the government in any other part of the State.

This legislative history of the title of the State of Iowa, and of those to whom she had conveyed the lands certified to her by the Secretary of the Interior as part of the grant of 1846, including among her grantees the Des Moines Navigation and Railroad Company, needs no gloss or criticism to show that the title of the State and her grantees is perfect, unless impaired or defeated by some other and extrinsic matter which would have that effect.

Such matter is supposed to be found in the act of 1856, already referred to, granting lands to the State of Iowa to aid in building railroads. The argument is, that as by the true construction of the act of 1846 none of the lands above the Raccoon Fork were granted for the improvement of the river, the grant of 1856 covered all the lands erroneously certified to the State under the former, which came within the descriptive terms of the latter grant.

This argument is undoubtedly sound so far as it goes, upon the theory that the State of Iowa had no title in 1856 to the lands in question, and that it was in the power of Congress to grant the lands to railroads. And the whole argument may be simplified and the question at issue narrowed by the concession, that unless these lands are excepted out of the grant of 1856 by a proviso in that act, the railroad companies did get the title of the government by that act, and by the subsequent location of their lines of road so as to include the lands in controversy.

'And provided further, That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same is hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.'

The effect of this proviso upon the title asserted in these suits under the railroad companies, to the lands certified to the State of Iowa as part of the river improvement grant, has been passed upon by this court in three different cases, and in each of them it has been held that all these lands were, at the time of the passage of the act of 1856, reserved within the meaning of the proviso, and that therefore no title passed to the State or to the railroad companies. It is not pretended that any title has been acquired by any other grant, or in any other manner.

It would seem that this should close the present controversy without further argument. But counsel have not hesitated to ask a reconsideration of the principles involved in those decisions; and the great value of the lands, the title to which must be governed by them, as well as the character of some of the reasons urged against their conclusiveness, have induced us to listen attentively to the oral argument on that subject, and to consider with deliberation and care all that has been presented on that point in writing.

The first and the leading case on the subject is that of Wolcott v. The Des Moines Company. It was a suit brought by Wolcott against the Des Moines Navigation Company, on a covenant of warranty of title, which it was alleged had failed under the decision in the case of Litchfield v. The Dubuque and Pacific Railroad Company. This court, in the Wolcott case, decided two propositions: 1st, that by reason of the proviso in the act of 1856 the railroad companies acquired no title to these lands; and 2d, that by the joint resolution of 1861 the title erroneously certified to the State, under the act of 1846, was validated and made good, and that therefore Wolcott had no cause of action on his covenant of warranty.

It is now said that Wolcott and the navigation company were in collusion to procure this decision, there being no real contest between them, and that the object was to procure from this court a decision adverse to the title of the railroad companies, none of whom were parties to the suit. Much evidence is found in the record of the cases now before us as heard in the Circuit Court to establish and to refute this allegation. We do not here intend to pass upon it, and we must be permitted to question both the taste and legal competency of testimony offered in an inferior court, to show that a decision in this court was obtained by fraudulent devices, when that decision is not relied on as evidence of any fact, or pleaded as an estoppel, but merely because it may be referred to as settling a principle of law applicable to the case at bar.

There is in the record of that case, as it remains in this court, sufficient answer to this objection to the opinion as an authority on the law of this case.

The writer of this opinion, though then a member of the court, declined to take any part in its decision because he had been of counsel for the navigation company in a general way, and did not know how far he might have been engaged in that case. But when it was submitted on printed arguments on both sides, he saw at once that the legal propositions involved did affect materially the title of several railroad companies in Iowa to the lands in question, and he felt it to be his duty to call the attention of those of his brethren who must decide the case to that fact. On this suggestion an order was made that those companies be notified of the pendency of that suit, with liberty to intervene and be heard on the question in which they were interested.

They did intervene. The case was postponed for over a year, and several arguments were submitted in favor of the railroad companies by able counsel, on the very question now under consideration, and an order was made inviting all parties interested to do so. It was after a full consideration of all these arguments that the decision was made. But there was an additional security that the court would carefully consider the question in the fact that there was submitted at the same time the case of Burr v. The Des Moines Navigation and Railroad Company on a similar warranty of title. Now, though both suits were decided in the Circuit Court for the Southern District of New York, they were decided by different judges, and the decisions were in conflict. This of itself would demand of the court a careful consideration of the point of difference, which was the very point now under consideration.

The same question precisely came up shortly afterwards in the case of Harriet Reily v. W. B. Wells, and was again fully argued, and from the opinion of the court, which remains on file, though unreported, the following language is taken: 'The reasons for this withdrawal of the lands from public sale, or private entry, are stated at large in the opinion of the court in Wolcott v. The Des Moines Company, and need not be repeated. The point of the reservation was very material in that case, and we have seen nothing in the present one, either in the facts or in the arguments, to distinguish it.' Whatever, therefore, may have been the design of the original parties to the suit of Wolcott v. The Des Moines Company, it is clear that the question here involved was argued fully by parties deeply interested on both sides, and received the attentive consideration of the court, and as an authoritative exposition of its views is entitled to the same weight as other well-considered cases.

We do not propose to review or add to the able and, to us, satisfactory argument of the judge who delivered that opinion, as well as the one in Reily v. Wells, but will notice the only new legal proposition advanced by counsel in the present case.

It is attempted to be shown that the proviso on which so much depends was one which in almost the same words it has been usual to insert in all grants of a similar character by Congress. And it is argued that, therefore, it could have no special reference in the mind of Congress to the lands certified under the act of 1846. If, however, this were conceded, it must remain true that the effect of the proviso was to cover such cases as came within its terms, whether known or unknown to Congress, and the opinion in the case referred to shows how distinctly those lands did come within the language and spirit of the proviso. So clear is this that it still seems to us that Congress did know of this reservation, and did intend to protect it as stated in that opinion.

We, therefore, reaffirm, first, that neither the State of Iowa, nor the railroad companies, for whose benefit the grant of 1856 was made, took any title by that act to the lands then claimed to belong to the Des Moines River grant of 1846; and, second, that by the joint resolution of 1861, and the act of 1862, the State of Iowa did receive the title for the use of those to whom she had sold them as part of that grant, and for such other purposes as had become proper under that grant.

AFFIRMED.

Mr. Justice DAVIS did not take part in this decision, on account of a supposed interest in the question; and Mr. Justice BRADLEY did not sit on the hearing.


text: Talk:Williams v. Baker Cedar Rapids Railroad Company/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Waldegrave, Robert


text:
Homestead Company v. Valley Railroad

APPEAL from the Circuit Court for the District of Iowa; the case being thus:

On the 8th of August, 1846, Congress granted to the then Territory, and now State, of Iowa— 'For the purpose of aiding said Territory to improve the navigation of the Des Moines River, from its mouth to the Raccoon Fork, so called, in said Territory, one equal moiety, in alternate sections, of the public lands, in a strip five miles in width, on each side of said river.'

The second section of this act provided that the lands so granted should not be sold or conveyed by the Territory, nor by any State to be formed out of it, except as the improvements progressed; that is, that sales might be made so as to produce the sum of $30,000, and then cease until the governor of the Territory, or State, as the case might be, should certify to the President of the United States the fact that one-half of this sum had been expended on said improvements, when sales again might be made of the remaining lands sufficient to replace this amount. The sales were thus to progress as the proceeds were expended, and the expenditure so certified to the President.

After this grant to the State of Iowa, sometimes called 'the river grant,' the legislature incorporated the Des Moines Navigation and Railroad Company, for the purpose of carrying out the improvement for which the lands had been granted; and the lands, with some exceptions, stated infra, page 157, were conveyed to that company.

Somewhere near the middle of the State, at Des Moines City, the Des Moines River receives as a tributary a stream called the Raccoon Fork. It thus happens that about one-half the river is above the point where this fork enters and one-half below. Each half traverses, of course, a region of great extent and value.

From the phraseology of the above-quoted grant of Congress, it is obvious that a controversy was susceptible of being raised; the point open to question being, whether Congress meant to grant to the State land on the Des Moines River above the point where the Raccoon Fork enters, as well as the land below this point, or whether it meant to grant only land below. On the one hand, the grant was for the purpose of improving the navigation of the river 'from its mouth to the Raccoon Fork.' On the other, the grant itself was of one equal moiety, &c., 'on each side of the said river.'

As early as February, 1848, a controversy assumed form: and what was the true meaning of the grant was a question which came before a succession of officers of the United States, commissioners of the land office, secretaries of the treasury, secretaries of the interior, and attorneys-general. Some of these thought that the grant did not extend above the fork. Others, including Mr. A. H. Stuart, Secretary of the Interior (the department to which the subject primarily belonged), was of the opinion that it did, and certified the lands above as though that were the true construction of the grant.

The agents of the State, who had been appointed by the governor to select the sections designated by odd numbers, selected them from the mouth of the river towards the northern boundary of the State as far as surveyed; in other words, above the fork as well as below.

On the 15th of May, 1856, Congress, by act of that date, granted to the State of Iowa, for the purpose of aiding in the construction of certain railroads specified (including the Dubuque and Pacific Railroad), every alternate section of land for six sections in width on each side of said roads. Standing without any restriction, this grant, as the road named was laid out, would have embraced certain tracts which, if the act of the 8th of August, 1846, rightly construed did include tracts above the fork, had been granted under that act for the improvement of the navigation of the Des Moines River. But the grant did not stand without restriction. On the contrary, it contained a reservation, thus:

'Provided, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.'

If, therefore, Mr. Stuart and the Department of the Interior, and the officers of the Federal government, who had acted on the idea that the grant included lands above the fork, and reserved them to the United States for the purpose of aiding the improvement of the Des Moines River, were 'competent authority,' within the meaning of this act, then to whomsoever else they passed or did not pass, those lands did not pass to the State under this act of May 15th, 1856, for the benefit of its railroads. But herein, again, it is obvious was a field for controversy.

Whatever the reservation or proviso to the act might mean, the State of Iowa, by act of July 14th, 1856, accepted the act and, without describing any lands particularly, enacted that the lands granted by the act 'are hereby disposed of, granted, and conferred to and upon the Dubuque and Pacific Railroad Company.' After this the lands were treated by the railway company as belonging to it, and on the 7th of April, 1863, the Commissioner of the General Land Office and Secretary of the Interior approved these specific lands to the railroad grant, and they were certified to the State on that day, as part of the railway grant. The railway company now paid the taxes.

Here then the two companies-the navigation company on the one hand and the railroad company on the other were put in antagonism. A question to be decided was this, 'Did the grant of the 8th August, 1846, which was now represented by the navigation company, pass lands above the fork?'

[To preserve, however, in a chronological order, the chain of certain event hereinafter referred to, we will here, at the apparent expense of unity of subject, mention that on the 22d of March, 1858, the legislature of Iowa, having sold a portion of the lands granted by the act of August 8th, 1846, and being about to convey certain other portions to the Des Moines Navigation Company, granted, by an act, all the residue of them, and 'all lands and compensation which may be given in extension, or in lieu of any portion thereof, by the General Government, to the Keokuk, Fort Des Moines, and Minnesota Railroad Company (whose name was subsequently changed to the Des Moines Valley Railroad Company);' the grant to become operative so soon as Congress shall assent to or permit a diversion, or the title thereto shall become tested in the State so as to be subject to a grant. ]

To come back, however, now, to the question about the extent of the grant.

That question got before this court A. D. 1860, in The Dubeque and Pacific Railroad v. Litchfield, where it was finally decided that the grant carried nothing above the fork. This question, therefore, was at an end. But it did not follow from this that any of the lands above had passed to the railroad company under the act of the 15th May, 1856. That was another question, and whether or not they had so passed would depend on the effect of the proviso or reservation in that act; a matter then an yet judicially unsettled.

As soon as the decision in The Dubuque and Pacific Railroad v. Litchfield, deciding that the navigation company, under the grant of the 8th of August, 1846, took no lands above the fork, was announced (which it was in 1860), Congress passed first a joint resolution, and then an act, to counteract its effects.

The joint resolution, which bore date March 2d, 1861, was thus:

'Resolved, &c., That all the title which the United States still retain in the tracts of land along the Des Moines River and above the mouth of the Raccoon Fork thereof, which have been certified to said State improperly by the Department of the Interior as part of the grant by act of Congress, approved August 8th, 1846, and which is now held by bon a fide purchasers under the State of Iowa, be, and the same is hereby relinquished to the State of Iowa.'

The act of Congress, which was approved 12th of July, 1862, was thus:

'Be it enacted, That the grant of lands to the then Territory of Iowa for the improvement of the Des Moines River, made by the act of August 8th, 1846, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon Fork and the northern boundary of said State. Such lands are to be held and applied in accordance with the provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines, and Minnesota Railroad [subsequently called the Des Moines Valley Road], in accordance with the provisions of the act of the General Assembly of the State of Iowa, approved March 22d, 1858.'

The act then went on further to say:

'And if any of said lands shall have been sold or otherwise disposed of by the United States, before the passage of this act, excepting those released by the United States to the grantees of the State of Iowa under the joint resolution of March 2d, 1861, the Secretary of the Interior is hereby directed to set apart an equal amount of lands within said State, to be certified in lieu thereof. Provided that if the said State shall have sold and conveyed any portion of the lands lying within the limits of this grant, the title of which has proved invalid, any lands which shall be certified to said State, in lieu thereof, by virtue of the provisions of this act, shall inure to and be held as a trust fund for the benefit of the person or persons respectively, whose title shall have failed as aforesaid.'

This act having been passed, an agent of the State of Iowa and the Commissioner of the General Land Office met, and on an assumption that the lands above the fork meant to be given by the act of Congress, July 12th, 1862, for the improvement of the Des Moines River, had been granted to the Dubuque and Pacific Railroad Company by the act of May 15th, 1856, agreed 'that the United States had sold and otherwise disposed of a certain quantity of land prior to the passage of the said act [of July 12th, 1862], for which the State was entitled to indemnity under the act aforesaid;' and, entering into negotiations, finally made an adjustment of things by which a large quantity of lands were certified to the State as indemnity for the lands which, upon the representations of the agent of Iowa, the United States admitted had been disposed of by it under the grant of May 15th, 1856, for railroad purposes. And this action of the commissioner, made May 21st, 1866, was approved by the Secretary of the Interior on the next day.

Soon after this adjustment, that is to say, in the spring of 1867, this court, in the case of Wolcott v. Des Moines Company, decided that the lands which had been reserved by the action of so many principal officers of the United States, including Mr. Stuart, Secretary of the Interior, had been reserved by 'competent authority,' within the meaning of the proviso in the act of May 15th, 1856, and decided again the same thing in Des Moines Navigation Company v. Burr, and yet again in Harriet Riley v. W. B. Wells, a case which the reporter did not, in view of two previous decisions, think it necessary to report.

As under each one of these decisions the court decided that the United States had not, by its act of the 15th of May, 1856, given anything away to the State for the benefit of its railroads which, even assuming that the act of the 8th of August, 1846, carried lands above the fork, would have belonged to the navigation company-or, as, in other words, it decided that there was, so far as the act of May 15th, 1856, was concerned, no ground for indemnity to the State of Iowa for a loss to the navigation company, the State was now naturally prompt to ratify the action of its own agent and of the Federal officers, who had acted on a different supposition of the effect of the proviso or reservation; and on the 31st of March, 1868, the State, accordingly, by act of legislature, did ratify and confirm their action.

Congress equally, on the 3d of March, 1871, notwithstanding the decisions above mentioned, by act of the date just mentioned enacted:

'That the title to the land certified to the State of Iowa by the Commissioner of the General Land Office, under the act of July 12th, 1862, in accordance with the adjustment made by the authorized agent of the State of Iowa and the Commissioner of the General Land Office, May 21st, 1866, and approved by the Secretary of the Interior May 22d, 1866, and which adjustment was ratified and confirmed by the State of Iowa March 31st, 1868, be, and the same is ratified and confirmed to the State of Iowa and its grantees, in accordance with said adjustment and said act of the General Assembly of the State of Iowa.'

Thus, as the reader will perceive, the summing up of everything, including all the legislation, and all the decisions, ended with these results:The navigation company got its alternate sections above the fork:

The Des Moines Valley Railroad (succeeding to the Keokuk, Fort Des Moines, and Minnesota Railroad) got the body of the 'indemnity lands,' which had been granted to the State for the improvement of the river, on the assumption that the navigation company (owing to the Congressional grant of May 15th, 1856) had not got them:

While the Dubuque and Pacific Railroad Company, for whose erroneously supposed taking away, under the grant just mentioned, from the navigation company of lands above the fork, the indemnity lands had been granted to the said navigation company, got-nothing at all.

The Homestead Company (to which it ought to have been earlier said that the Dubuque and Pacific Railroad Company had granted its rights, and who, with it, had paid $80,000 taxes on the lands) now accordingly filed its bill in the court below, against the navigation company, the Valley Railroad Company, and others, setting up—

1st. (And in the face of what was decided in Wolcott v. Des Moines Company and the two other cases) that the act of May 15th, 1856, did carry to it the lands above the fork.

2d. That if this was not so, then that they were holders of titles under the State, which had failed within the meaning of the proviso in the act of July 12th, 1862, and so cestui que trusts for a portion of the indemnity lands granted by it.

3d. That if they were not such holders, and not so entitled, they were nevertheless entitled to a portion of those lands, because the said lands had been certified to the navigation company or its grantees upon the assumption that the river lands had been granted by the act of May 15th, 1856, to the railroad company; a matter now decided not to have been true in fact or law.

The court below dismissed the bill and the Homestead Company took this appeal.

Mr. James Grant, for the appellants; Messrs. J. F. Withrow, C. C. Nourse, and E. C. Litchfield, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Homestead Company v. Valley Railroad


text: Talk:Homestead Company v. Valley Railroad


text:
Homestead Company v. Valley Railroad/Opinion of the Court

This case presents another phase of the Des Moines River land litigation.

The main question involved in this case is the question of title to the Des Moines River lands, which was settled several years ago by the decision in the cases of Wolcott and Burr, and in the subsequent and unreported case of Riley v. Wells, adversely to the title set up by the appellants. At the present term of this court, the principles involved in these decisions have been reconsidered and reaffirmed. It is therefore no longer an open question that neither the State of Iowa nor the railroad companies, for whose benefit the grant of 1856 was made, took any title by that act to the lands then claimed to belong to the Des Moines River grant of 1846, and that the joint resolution of 2d of March, 1861, and act of 12th of July, 1862, transferred the title from the United States and vested it in the State of Iowa for the use of its grantees under the river grant. If so, the claim of title by the appellants, who are grantees under one of these railroad companies, to the lands certified to the State of Iowa, under the act of August 8th, 1846, above the Raccoon Fork of the Des Moines River, has no foundation to rest upon.

But the appellants insist if they cannot recover these lands they are cestui que trusts for a portion of the indemnity lands obtained by the State under the act of July 12th, 1862. Congress by this act extended the grant originally made to the State in 1846, for the improvement of the Des Moines River, so as to include the alternate sections of land (designated by odd numbers) between the Raccoon Fork and the northern boundary of the State, and consented that a portion of these lands should be applied to the construction of a railroad, which, by change of name, is called the Des Moines Valley Road.

This legislation was intended to put the State in exactly the position it would have been, if there had been no dispute as to the extent of the grant in 1846, and accordingly the Secretary of the Interior was directed if any of the lands within the granted limits should have been sold or otherwise disposed of by the United States before the passage of the act, to set apart an equal quantity elsewhere in the State in lieu thereof.

In case the State also had sold and conveyed any of these lands, the title to which had proved invalid, the act directed that the land set apart by the Secretary of the Interior should be held in trust for the benefit of those persons whose titles had thus failed. This latter provision was rendered necessary by the conflict in opinion which had for a series of years existed concerning this river grant. The State had always maintained that the original grant, properly construed, extended above the Raccoon Fork, while on the contrary, the United States had at different times both denied and admitted the claim of the State. It was to be expected in this condition of the dispute that both the State and General Government had disposed of a portion of these lands. If so, and the title of the grantees of the State had proved invalid, it was eminently proper that they should be protected, and there was no better way to do this than to require the State, in the first instance, to use the indemnity lands for this purpose.

It is admitted in the record that the State has conveyed to the Des Moines Valley Railroad Company, one of the defendants in this suit, for good and valuable considerations performed by the company, all the lands received by the State under the act in question, except those only which had been conveyed by the State under the act of August 8th, 1846, and the legislation pursuant thereto.

The inquiry arises, whether the State, at the time of the passage of the act of 12th of July, 1862, had conveyed to the grantor of the appellants any portion of the lands lying within the river grant. If not, they are not within the purview of the act, for they have not suffered any loss by reason of any transaction with the State, and are, therefore, not in a position to claim compensation. The Iowa legislature, by the act of July 14th, 1856, conveyed to the Dubuque and Pacific Railroad Company, the grantor of the appellants, the lands granted to the State by the act of Congress of May 15th, 1856. The conveyance did not specify any particular lands, but in a general way transferred to the company all the rights and interests which the State received from the United States under this grant. If, therefore, the river lands were not granted to the State by the act in question, they were not embraced in the conveyance which the State made to the company, and the State, therefore, has not broken its engagement with the company. This court having decided and reaffirmed the decision that the grant of 1856 did not include the lands claimed by the State to belong to the river improvement, it is difficult to see on what grounds the appellants can rest their right to indemnity under the act of July 12th, 1862, for they cannot be cestui que trusts, as they never had any title which has proved invalid.

But the appellants insist if they are not the holder of any titles which have failed within the meaning of the act of July 12th, 1862, they are, nevertheless, entitled to a portion of the indemnity lands certified to the State under that act, because they were certified upon the assumption that the river lands had been granted by the act of May 15th, 1856. It is undoubtedly true that in 1866, on this theory, the State of Iowa, through its authorized agent, made an adjustment with the Commissioner of the General Land Office, by which a large quantity of lands were certified to the State, as indemnity for the lands which it was claimed had been disposed of by the United States by the grant for railroad purposes in 1856. It is equally true that the construction by these officers of the different acts of Congress relating to this subject, by which this result was obtained, was erroneous, as we have held in three different cases. But the decision in Wolcott's case, the first of the three, was not then announced, and the adjustment was doubtless induced by the decision in Litchfield's case, that the river grant did not extend above the Raccoon Fork. Whatever may have caused the adjustment, it is quite apparent, as the lands were erroneously certified under the act of July, 1862, that something more was needed than the action of the land commissioner, fortified as it was by the approval of the Secretary of the Interior, to pass a valid title to the State and its grantees. That which was requisite to accomplish this object was obtained by the legislation of the State and of Congress. The legislature of Iowa, in March, 1868, on the performance of certain conditions, directed a conveyance to be made to the Des Moines Valley Railroad for all the lands embraced in the act of Congress, approved the 12th of July, 1862, and ratified the adjustment made with the Commissioner of the General Land Office. In accordance with this legislation the lands in controversy were patented by the State to the company, the conditions imposed upon the company before this could be done having been complied with. Although the ratification of the adjustment and the grant to the Valley Railroad would seem to be inconsistent acts, yet Congress, with full knowledge on the subject, on the 3d of March, 1871, confirmed the title to the State and its grantees. It is true the law by which this is done, says it is in accordance with the adjustment, and the act of the General Assembly of Iowa, but, as we have seen, this act not only ratified the adjustment, but also granted the lands to the Valley Road.

Indeed, the main purpose of the act was to secure the construction of the road, by the transfer to it of the lands obtained under the adjustment. Whether the State of Iowa in the disposition which it made of these lands, conformed to the adjustment, is not a question for us to consider.

This consideration was properly addressed to Congress, who, with full knowledge that the legislature had parted with the lands to the Valley Road, chose to confirm the title to 'the State and its grantees.'

If Congress had withheld its consent to what the State had done, neither the State nor the road would have taken anything by the action of the officers certifying the lands. This was also known to Congress, because the decision in Wolcott's case was then before the country.

Congress, therefore, with full information that the State of Iowa was not entitled to these indemnity lands by reason of any previous legislation, thought proper, nevertheless, to give them to the State, knowing at the time that they were to be used in building a railroad along the line of the Des Moines River. It had already consented that a part of the lands originally designed for the improvement of this river by locks and dams, should be applied to the construction of this road, and was doubtless induced to give the direction it did to the indemnity lands, because it was satisfied that further aid was necessary to secure the completion of the Valley Road, while the east and west roads were either completed or nearly so. If we are correct in these views there is an end of this controversy, because Congress had the undoubted right to dispose of these lands for such purposes as in its judgment might best subserve the public interests, and having decided this question for itself, the Homestead Company is not in a position to question the authority of that decision. As the grant in 1856 did not cover the river lands in place, this corporation is not within the terms of the act of July 12th, 1862, and have, therefore, no rights which either the State of Congress were bound to respect.

It must be conceded that its expectation to share in the result of the adjustment concluded between the authorized agent of the State and the land department of the General Government was reasonable under the circumstances; but this expectation was not founded on any legal right, and cannot, therefore, be the subject of judicial inquiry.

It seems that the appellants, during this litigation, paid the taxes on a portion of these lands, and claim to be reimbursed for this expenditure in case the title is adjudged to be in the defendants, on the ground that they paid the taxes in good faith and in ignorance of the law. But ignorance of the law is no ground for recovery, and the element of good faith will not sustain an action where the payment has been voluntary, without any request from the true owners of the land, and with a full knowledge of all the facts. It is an elementary proposition, which does not require support from adjudged cases, that one person cannot make another his debtor by paying the debt of the latter without his request or assent.

It is true, in accordance with our decision, the taxes on these lands were the debt of the defendants, which they should have paid, but their refusal or neglect to do this did not authorize a contestant of their title to make them its debtor by stepping in and paying the taxes for them, without being requested so to do. Nor can a request be implied in the relation which the parties sustained to each other. There is nothing to take the case out of the well-established rule as to voluntary payments. If the appellants, owing to their too great confidence in their title, have risked too much, it is their misfortune, but they are not on that account entitled to have the taxes voluntarily paid by them refunded by the successful party in this suit.

DECREE AFFIRMED.

Mr. Justice MILLER took no part in this decision.

At the same time with the preceding was adjudged another, Crilley v. Burrows, which the court said (Mr. Justice DAVIS delivering the opinion) was 'in no essential respect different from it;' and had 'no principle which had not already been passed upon by this court in some one of the suits relating to this protracted litigation.' On this account it is no further reported.


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


text: Crilley v. Burrows

title: Crilley v. Burrows


text: Talk:Crilley v. Burrows

title: Talk:Crilley v. Burrows


text: Dictionary of National Biography, 1885-1900/Waldegrave, Samuel


text:
Crilley v. Burrows/Opinion of the Court

At the same time with the preceding was adjudged another, Crilley v. Burrows, which the court said (Mr. Justice DAVIS delivering the opinion) was 'in no essential respect different from it;' and had 'no principle which had not already been passed upon by this court in some one of the suits relating to this protracted litigation.' On this account it is no further reported.

title: Crilley v. Burrows/Opinion of the Court


text: Talk:Crilley v. Burrows/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Waldegrave, William (fl.1689)


text:
United States v. Cook (84 U.S. 168)

ON certificate of division of opinion of the judges of the Circuit Court for the Southern District of Ohio; the case being thus:

The 16th section of the act of August 6th, 1846, enacts:

'That all officers and other persons charged. . . with the safe-keeping, transfer, and disbursement of the public moneys. . . are hereby required to keep an accurate entry of each sum received, and of each payment or transfer; and that if any one of said officers. . . shall convert to his own use. . . any portion of the public moneys intrusted to him for safe-keeping, disbursement, or transfer,. . . every such act shall be deemed to be an embezzlement of so much of the said moneys as shall be thus. . . converted,. . . which is hereby declared a felony;. . . and any officer or agent of the United States convicted thereof shall be sentenced to imprisonment for a term of not less than six months, nor more than ten years, and to a fine equal to the amount of the money embezzled.'The 32d section of an act of April 30th, 1790, entitled 'An act for the punishment of certain crimes against the United States,' thus enacts:

'No person shall be prosecuted, tried, or punished for any offence not capital, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, &c. Provided that nothing herein contained shall extend to any person or persons fleeing from justice.'

The 3d section of an act of 1804, entitled 'An act in addition to the act entitled,' &c. (as above), thus further enacts:

'Any person or persons guilty of any crime arising under the revenue laws of the United States. . . may be prosecuted, tried, and punished, provided the indictment. . . be found at any time within five years after committing the offence, any law or provision to the contrary notwithstanding.'

These statutes being in force, one Cook was indicted in the court below at October Term, 1864, for the embezzlement of funds held by him as paymaster in the army of the United States.

The indictment was filed on the 1st of November, 1864; and the first five counts charged acts of embezzlement on the 1st of May, the 6th of July, the 15th of October, the 12th of September, and the 20th of September, in the year 1862.

The defendant demurred to these counts, because it appeared upon the face of them, severally, that the crime charged was committed more than two years before the finding and filing of the indictment, and that the prosecution therefor was, before the finding and filing of the indictment, barred by the statute in such cases made and provided.

Three questions now arose on which the judges were opposed in opinion, and which they accordingly certified for answers by this court:

First. Whether it was competent for the defendant to take exception, by demurrer, to the sufficiency of the first five counts of the indictment for the causes assigned.

Second. Whether the said five counts, or either of them, allege or charge, upon their face, any crime or offence against the defendant for which he is liable in law to be put upon trial, convicted, and punished.

Third. Whether the 32d section of the act of 1790, sometimes called the Crimes Act, applied to the case, and limited the time within which an indictment must be found for such an offence, or whether in regard to the period of limitation, within which an indictment was to be found, the case was governed by the act of 1804, or any other act limiting the prosecution of offences charged in the said five counts.

Messrs. Hunter, Kebler, and Whitman, for the prisoner:

1. The demurrer should be sustained.

In all prosecutions for crime, the indictment must, upon its face, show that the defendant is charged with a crime. He is called to answer to the charge alleged against him, and to nothing else. And if follows if the indictment upon which a party is charged, do not, upon its face, in terms, embody a charge of crime, it is the duty of the court, at any stage of the prosecution, and in any form whatever in which the want of such charge or allegation shall be brought to its notice, to desist from further exercising its jurisdiction over the defendant. This defect of the indictment may be shown, on motion to quash, or on demurrer, or it may be noted by the court, su a sponte. On principle the inability of the court to proceed extends to all classes of defects, whether in the substance of the act alleged as crime, not being such in law; or by reason of exemption of the defendant, by law, from prosecution under the facts alleged against him. It is not the fact, but the allegation-the charge in the indictment, that gives jurisdiction. If, taking the fact as charged, no crime for which the defendant is liable, under the law, to be prosecuted, tried, and punished is charged, does it matter what the reason is?

There is, no doubt, some diversity of opinion on the subject, in criminal practice, in respect to the manner in which this defence of limitation may be taken advantage of, but there surely need not be any delicacy or hesitation about requiring the prosecution, prim a facie, to bring itself by proper allegations within the law, so far as to show a prim a facie case of crime, legally punishable under the law. Numerous cases, including Commonwealth v. Ruffner, and Hatwood v. The State, affirm this view.

2. The limitation of the act of 1790, and not that of the act of 1804, or any other, governs the case.

A paymaster, or an additional paymaster in the army, intrusted with the funds of the government to be disbursed in the time of war, in the payment of the soldiers in the field, is not in any proper sense, or in any recognized acceptation of terms, in their practical or legal sense, a revenue officer.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: United States v. Cook (84 U.S. 168)


text: Talk:United States v. Cook (84 U.S. 168)