text:
Germain v. Mason (79 U.S. 259)

MOTION by Mr. Nathaniel Wilson to dismiss a writ of error to the Supreme Court of Montana Territory; the case as it seemed, from a not very clear record, being thus:

J. Mason and L. B. Duke brought suit in the court below against Jules Germain to recover a balance due for work and materials furnished in building a house, and to enforce a mechanic's lien against the house and the lot on which it was built for the debt. One C. L. Dahler, A. J. Davis, and eighteen other persons, who the petition stated 'had or claimed to have some interest, claim, or lien on the incumbered premises,' were made defendants, but the petition alleged that their interest, claim, or lien, if any, had accrued subsequently to that of the plaintiffs; and it prayed 'for judgment against the said Jules Germain in the sum of $6651,' and that it be adjudged that the defendants, C. L. Dahler, A. J. Davis, and the eighteen others named, and all persons claiming under them subsequently to the commencement of the action, by barred and foreclosed of all right, claim, lien, &c., in, on, or to the incumbered premises, 'and that the premises be decreed to be sold,' &c. The court decided that the lien of the plaintiffs was paramount to that of all other persons, and gave judgment against Germain in personam for the debt, with an order that if it could not otherwise be made out of him, the real estate on which the lien was claimed should be sold, and out of the proceeds of the sale the debt of the plaintiffs should be first paid. To this judgment Germain alone sued out a writ of error. The writ purported to be taken—

'Because in the records and proceedings, as also in the rendition of the judgment of a plea between J. Mason and L. B. Duke, plaintiffs, and Jules Germain et al., defendants, a manifest error hath happened, to the great damage of the said Jules Germain, one of said defendants as aforesaid, as by his complaint appears.'

The bond recited that 'Jules Germain, one of the defendants in the above cause, had prosecuted a writ of error to the Supreme Court of the United States to reverse the judgment,' and the obligors undertook 'on the part of the appellant' that he would pay the costs, &c.

Mr. Wilson, in support of his motion, argued that as the writ of error described the defendant in the original suit as Jules Germain et al., the case fell within the ruling in Deneale v. Stump's Executors, and similar subsequent cases, and that the writ should be dismissed.

Mr. M. Blair, contra: The money judgment is against Germain alone. He singly can appeal.

Mr. Justice MILLER delivered the opinion of the court.

title: Germain v. Mason (79 U.S. 259)


text: Talk:Germain v. Mason (79 U.S. 259)

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

title: Talk:Germain v. Mason (79 U.S. 259)


text:
Germain v. Mason (79 U.S. 259)/Opinion of the Court

The cases relied on for the dismissal of the writ are all reviewed in Mussina v. Cavazos, and it is there said that they rest upon the principle that all the parties to the original judgment must, when it is a joint judgment, be brought before this court, and that this is not done by a writ which does not give their names.

In the case before us the writ is sued out by Germain alone, who is the only party mentioned as damaged by the alleged error of the court, and who alone gives the appeal bond. If, therefore, Germain can bring the writ without joining other parties as plaintiffs in error, the writ is not defective.

We have examined the record-a very confused one-but from it we gather enough to satisfy us that the judgment of which Germain complains is such a separate judgment against him as authorizes him to ask a review of it here without joining his co-defendants in the court below, who have not thought proper to disturb the judgment.

The lien creditors, co-defendants with Germain, have not sought to reverse the judgment; but Germain, who has a separate, distinct, personal judgment against him for money, in which the other defendants have no interest, has a right, we think, to prosecute a writ of error in his own name without joining them.

MOTION OVERRULED.


text: Talk:Germain v. Mason (79 U.S. 259)/Opinion of the Court


text:
Hannibal Railroad v. Swift

ERROR to the Circuit Court for the District of Missouri.

Swift, a surgeon in the army of the United States, brought a suit in the court below against the Hannibal and St. Joseph Railroad Company, to recover the value of certain baggage and personal property, owned by him, and lost when in a course of transportation on the said road.

The case, which was agreed on by the parties, and tried by the court without a jury, was thus:

The plaintiff had been stationed as a surgeon in the army, with his wife and family, previous to the rebellion, at Fort Randall, Dacotah Territory. A part of the garrison, with the plaintiff, having been ordered to report for duty at Cincinnati, arrived in December, 1861, at St. Joseph, Missouri, where they were to take the cars of the railroad of the company now sued, for Hannibal, on the Mississippi River, the eastern end of the road. The plaintiff was accompanied by his wife and family, and they carried with them their wearing apparel, some household outfit, and other property.

On their arrival at St. Joseph, the commanding officer gave notice to the railroad company that he required transportation for the troops, their baggage, camp equipments, arms, munitions, and the chattels of himself, as well as those of the plaintiff, from St. Joseph to Hannibal. At that time nearly all that portion of the State of Missouri through which the railroad ran, was in a state of rebellion against the United States. For some months previously, armed bands of rebels had committed frequent depredations on the railroad by firing into trains, burning bridges, trains of cars, and station-houses, destroying culverts, and tearing up the track. The railroad agents at St. Joseph communicated these facts to the commanding officer of the troops, and so did the officer who was then in command of United States troops at St. Joseph. On account of the great danger to the command along the line of the road from these bands, the officers of the road refused to make any contract for the transportation of the command over the road, and none was made or signed until after the command had arrived at Hannibal, at which place the amount of compensation for transportation was agreed upon.

On demand of the commanding officer the railroad company furnished transportation for the troops, their baggage, camp equipments, arms, munitions of war, and the chattels of himself as well as those of the plaintiff. Out of several cars standing in the yard of the railroad company at St. Joseph, the commanding officer selected the car in which the baggage belonging to the officers and men of the command, its camp equipage, arms, and munitions, also the property of the plaintiff, for which this action was brought, were loaded. In the said car 9000 cartridges were placed. The car was well built and in a secure condition; and the plaintiff was aware that his property was placed in that car. The commanding officer, as is customary where troops are moving by public conveyance from one point to another, detailed some men from his command to guard that car, while another portion packed and loaded it with the property mentioned. The soldiers carried their arms in their hands for use in case of an attack from the enemy. None of the railroad company's officers, agents, or servants had anything to do with selecting, packing, or loading the car selected, but after the same was completed, and the car locked up by the commanding officer, the agents of the railroad company placed the car in the train next to the tender of the engine that moved the car, and the train upon which the command were transported from St. Joseph to Hannibal. The train in which the car was placed was a regular passenger train of the railroad company, and was well manned and equipped. It had a baggage car attached to it and a baggage-master in charge of the car, whose duty it was to receive and take charge of all baggage of passengers transported on said train, and who did take charge of all baggage of passengers on the train that was offered him, checks being given therefor. There was ample room in the baggage car for the plaintiff's baggage, and the baggage car and its contents were not burned or destroyed. The car containing the property sued for was the only one burnt, and no part of the train was attacked or molested by armed rebels or otherwise as known. The plaintiff did not place the property sued for in charge of the baggage-master or other agent or servant of the defendant, except as above stated, nor was the same ever received by the defendant, except as thus stated, that is, by taking possession of the car and placing it in the train. It did not appear, from anything in the agreed case, that the control and management of the car or of the train by the agents and servants of the defendant were subsequently interfered with by the commanding officer, or the plaintiff, or any of the troops.

The car in which the property was loaded as above mentioned, whilst on the way from St. Joseph to Hannibal, from some cause unknown, and, so far as known, without any fault of the agents, or servants of the railroad company, except as disclosed above, took fire and, with most of its contents, was consumed. After the discovery of the fire most of the contents of the car could have been saved, but from fear of injury be explosion of the cartidges known to be therein.

A surgeon in the United States Army is entitled by army regulations to 800 pounds of baggage.

The court held that the plaintiff was entitled to recover, and the case went to a referee under the stipulation of the parties to ascertain the damages sustained.

The property lost, for which the action was brought, consisted of the wearing apparel of plaintiff and family; table furniture, including silverware to the value of $204.50; three buffalo robes, two deer robes, hair mattresses and pillows, writing-desks, tables, engravings, pictures, and statuary, and numerous articles of a household outfit; besides jewelry to the value of $787.50; a set of surgical instruments of the value of $350, and an unpublished manuscript on veterinary surgery. The property weighed twenty-seven hundred pounds.

The value of the jewelry, as above stated, and $1000 as the value of the manuscript, were allowed by the referee in assessing the damages. He also allowed interest on the damages from the time of the loss to the filing of his report.

The Circuit Court, however, on exception, disallowed the value of the jewelry and the manuscript, as well as the interest given by the referee, allowing interest on the principal sum only from commencement of the suit.

The following exceptions of the defendant to the referee's report were overruled by the court: (1) To the allowance of the value of more than 800 pounds of baggage. (2) To the allowance of the value of the silverware. (3) To the allowance of the value of plaintiff's surgical instruments.

The court sustained the assessment for the sum of $3129.60, for which judgment was entered in favor of the plaintiff, and the railroad company brought the case here.

Mr. James Carr, for the plaintiff in error:

The goods were never delivered to the railroad company. It had expressly refused to receive them. The car in which they were shipped was selected by the officer in command of the troops; it was guarded, loaded, and packed by them, and then locked by the officer. They were in the exclusive custody and control of the officer and men. He and his men were the agents of the plaintiff for this particular purpose. They continued in this exclusive custody and control from the time that the goods were loaded, until the car in which they were, with its contents, was burnt. It was the only car in the train that was burnt. If the plaintiff desired to hold the company responsible as a common carrier why did he not deliver his goods to its servants, and let them select the car and pack and load to suit themselves? The company ought not to be held responsible for the unskilful or negligent loading and packing of the agents of the plaintiff.

But if it be held that there was a delivery to the company, then the delivery was obtained by compulsion, and is not binding.

The plaintiff was guilty of negligence in having his goods loaded in the car with the nine thousand musket cartridges; things of a highly combustible nature, and liable to ignite by the friction occasioned by the oscillation of the train. He voluntarily had his goods placed in that car. He had the privilege of putting them in the baggage car in charge of the baggage-master. He did not do so. The baggage car was not burnt or anything in it injured. Volenti non fit injuria.

The army regulations entitled the plaintiff to transportation for only eight hundred pounds of baggage; whereas the fact is, that he had two thousand seven hundred pounds of things, which he was having transported at the expense of the government, and at government rates, and under the aegis of the government. Nor was what he had baggage. Silverware is not baggage; nor samples of merchandise; nor a trunk of merchandise; nor bank notes in a travelling trunk.

Mr. J. Hubley Ashton, contra:

The case shows that on the demand of the officer in command of the troops, the defendant furnished transportation for them, as well as the plaintiff, and the public and private property which they brought; that the car in which this property was stored was placed by the agents of the company in the train on which the command was carried; and that, on the arrival of the troops at Hannibal, the compensation, payable for transporting the troops and the property, was fixed by agreement between the proper officer and the company, and the amount afterwards received by the defendant from the United States. The payment made by the government was thus for one entire service, just as if the amount had been agreed upon and paid before the troops started, and the company had then furnished cars to convey them and their baggage and the public property in their charge. The compensation received was none the less because it was adjusted afterwards.

The only reason why no contract was made before the train started was, that the company did not desire to be responsible for any loss happening through rebel violence. At that early day of the rebellion it was doubtless supposed that such loss would not be within the exception of the act of the public enemy.

No express stipulation was made, however, before the train went off, discharging the company from any of the duties annexed to its employment.

Now, in view of these facts, it is vain to say that this property was never delivered to the defendant, and that it refused to receive the goods.

The arrangement in regard to the baggage was made by the proper officer with the company. That this arrangement contemplated a separate car for all the property with the command, and not the ordinary conveyance in the regular baggage car, as in the case of a private passenger, cannot affect the carrier's responsibility. Nor can it matter that the officer selected the car. The car was the defendant's. It must be equally unimportant that the soldiers loaded the car, and not the servants of the company, so far as the question of the delivery of the goods to it for carriage is concerned. A company will not be exonerated, because the owner of the goods furnishes his own car, and assumes the loading and unloading, and furnishes a brakeman to accompany the car. This is expressly decided in Mallory v. Tioga Railroad. Nor will it be if the goods are placed in a crate belonging to an express company, and placed in charge of the carrier. Nor where a warehouseman, having goods to send by rail, applied to the company, who ran a car upon a side track to the warehouse. Nor if the owner accompanies the goods to look after them. Nor where a passenger on a boat takes charge of his property after it is placed on the boat. If the carrier receive an article for carriage, though not bound to receive it at the time or place, or in the condition in which offered, he is responsible.

No question of negligence, in the matter of loading the car, can arise here, as the agreed case expressly finds that the car took fire 'from some cause unknown.' It cannot be inferred here and now that it was fired by the explosion of the cartridges, or by a spark from the engine. The latter is, however, the most probable theory, as the defendant's agents placed the car next to the tender of the engine, the unsafest place of all for it in the train.

On the question of damages. As to the weight of baggage. The defendant received from the government the agreed compensation for its carriage along with the rest of the property. Presumably, the proper fare and freight for persons and property accompanying the command were agreed upon; and the company received all it was entitled to for the service. It is not found that it claimed any greater compensation than it got. If the government paid for more bagage than the officer was entitled to carry, under regulations, in the quartermaster's wagons, that was its affair.

The company furnished transportation for all the property with the command, and incurred the carrier's responsibility for all. If some of the property was not strictly baggage, the acceptance of it for carriage renders the company liable for it.

The term baggage, is necessarily a relative term, and must be defined by the facts and circumstances of each case; including the object and length of the journey, and the habits and condition in life of the passenger. It is a question for the jury, rather than the court. Thus a proper sum of money for travelling expenses, contained in a trunk, is to be considered part of the passenger's personal baggage; and the amount must be determined by the whole journey, and include accidents, sickness, and sojourns by the way. So manuscript books, the property of a student, and the papers and books of a lawyer, in travelling on business. A valuable diamond breastpin, a gold breastpin, and a miniature set with gold, have been included in a lady's baggage. So a watch in a trunk.

The only objection that can be made to the allowance of the little silverware is, that it is not found that it was necessary for plaintiff's family. But this court will presume that all matter of fact was found that may be necessary to support the judgment. Besides, the finding is that it was household outfit. And in the case of an officer travelling with his family from one post to another, it would be included in the term 'baggage.'

As for the surgical instruments, it has been held that these, in the case of a medical man, are baggage.

Mr. Justice FIELD delivered the opinion of the court.

title: Hannibal Railroad v. Swift


text: Talk:Hannibal Railroad v. Swift

title: Talk:Hannibal Railroad v. Swift


text:
Hannibal Railroad v. Swift/Opinion of the Court

Two questions are presented by the record for our determination: 1st, whether upon the facts stated in the agreed case the railroad company was liable as a common carrier for the safe conveyance of the baggage and other property of the plaintiff; and, 2d, whether there was any error in the assessment of damages as allowed by the Circuit Court.

The railroad company was chartered by the legislature of Missouri in 1847, and for many years its railroad between the city of Hannibal, on the Mississippi River, and the city of Saint Joseph, on the Missouri River, has been constructed and in operation. Between those places the company was, in 1861, a common carrier, over its road, of passengers and their baggage, and of goods and merchandise. As such carrier, its duties and liabilities were plain; as a carrier of passengers it was bound, unless there was reasonable ground for refusal, to take all persons who applied for passage, and their baggage, and as a carrier of goods, to take all other property offered for transportation, and was responsible for the safe conveyance of the baggage and other property to the point for which they were destined, or the termination of the road, unless prevented by inevitable accident or the public enemy. Its obligations and liabilities in these respects were not dependent upon the contract of the parties, though they might have been modified and limited by such contract. They were imposed upon it by the law, from the public nature of its employment, independent of any contract.

If at any time reasonable ground existed for refusing to receive and carry passengers applying for transportation, and their baggage and other property, the company was bound to insist upon such ground if desirous of avoiding responsibility. If not thus insisting, it received the passengers and their baggage and other property, its liability was the same as though no ground for refusal had ever existed.

It does not appear from the agreed case that the company refused to transport over its road the troops of the United States, and the plaintiff and his family who accompanied them, when they arrived, in December, 1861, at Saint Joseph, or their baggage. camp equipments, arms, munitions, and other property, but only that it refused to enter into any special contract for the transportation, on account of the danger to the troops from the insurrectionary condition of the country through which the road ran, and the frequent depredations committed by armed bands of rebels upon the railroad, and its track, bridges, depots, and station-houses.

It was usual at the time, and during the entire war, for railroad companies to transport troops of the United States, with their baggage, at a less rate per head, and their equipments, arms, and munitions at a less rate per pound, than the prices paid by ordinary passengers for similar services, and it was undoubtedly the desire of the commanding officer in this case to have a special contract as to the amount of compensation to be paid for the transportation. As we read the agreed statement it was only a contract of this kind, fixing the rate of compensation, which was refused.

Whether the reasons assigned would also have justified a refusal to transport the troops and the plaintiff, with his family, and their baggage and other property, it is unnecessary to determine. It is enough to fasten a liability upon the company that it did not insist upon these reasons and withhold the transportation, but, on the contrary, undertook the carriage of men and property without being subjected to any compulsion or coercion in the matter.

The liability of the company was in no respect affected by the fact that the baggage, camp equipments, arms, and munitions of the troops, and the property of the plaintiff were placed in a separate car, selected by the commanding officer out of several cars standing in the yard of the company, and not in its regular baggage car, or by the fact that the car was loaded by some of the soldiers detailed for that purpose, and not by the servants of the defendant. The car selected belonged to the company, and, after it was loaded and locked by the commanding officer, the agents and employees of the company took charge of it and placed it in the regular train, which transported the troops and the plaintiff and his family, next to the tender of the engine. The liability of the company attached when it thus took possession of the property. No objection was made at the time to the selection of a separate car for the baggage and other property of the troops and the plaintiff, or to the kind of property offered for transportation, or to the manner in which the property was packed, or to the locking up of the car by the commanding officer. If objection existed on any of these grounds, or on any other ground not concealed but open to the observation of the company, it should have been stated before the property was received. The company might then have insisted, as a condition of its undertaking the transportation, upon the selection of a different car, or upon superintending its loading, or upon the possession of its key, or upon all of these things. Not having thus insisted, but having received the property and undertaken its transportation in the car in which it was placed, the company assumed, with respect to it, the ordinary liabilities of a common carrier.

The case of Mallory v. The Tioga Railroad Company, is much stronger than this. There the company only agreed with the plaintiff to furnish the motive power to draw his cars laden with his property, he to load and unload the cars and to furnish brakemen, to be under the control of the conductor of the train, to accompany them, yet the company was held liable, as a common carrier, for injuries to the cars and the property of the plaintiff not caused by inevitable accident or the public enemy. The court did not consider the fact that the property was transported in the cars of the plaintiff, and that the cars were loaded and unloaded by him, affected, in any respect, the liability of the company, the entire train in which the cars were moved being, whilst on the route, under the control and management of its servants and employees.

In all such cases the liability of the common carrier attaches when the property passes, with his assent, into his possession, and is not affected by the car in which it is transported, or the manner in which the car is loaded. The common carrier is regarded as an insurer of the property carried, and upon him the duty rests to see that the packing and conveyance are such as to secure its safety. The consequences of his neglect in these particulars cannot be transferred to the owner of the property.

It does not distinctly appear, from the agreed case, whether any troops were detailed to guard the car which contained their property and that of the plaintiff, except while the car was being loaded. But if it were admitted that a special guard was appointed for the car on the route, the admission would not aid the company or relieve it of liability. The control and management of the car, or of the train, by the servants and employees of the company, were not impeded or interfered with; and where no such interference is attempted it can never be a ground for limiting the responsibility of the carrier that the owner of the property accompanies it and keeps a watchful lookout for its safety.

The ruling of the court upon the findings of the referee, appointed to ascertain the damages sustained by the plaintiff, does not appear to us to be open to any valid objection. A considerable portion of the property, it is true, was not personal baggage, which the company was obliged to transport under the contract to carry the person; nor does it appear that it was offered to the company as such. It embraced buffalo robes, hair mattresses, pillows, writing desks, tables, statutory, and pictures, in relation to which there could be no concealment, and it is not pretended that any was attempted. Where a railroad company receives for transportation, in cars which accompany its passenger trains, property of this character, in relation to which no fraud or concealment is practiced or attempted upon its employees, it must be considered to assume, with reference to it, the liability of common carriers of merchandise. It may refuse to receive on the passenger train property other than the baggage of the passenger, for a contract to carry the person only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travellers for their personal use and convenience; such quantity depending of course upon the station of the party, the object and length of the journey, and many other considerations. But if property offered with the passenger is not represented to be baggage, and it is not so packed as to assume that appearance, and it is received for transportation on the passenger train, there is no reason why the carrier shall not be held equally responsible for its safe conveyance as if it were placed on the freight train, an undoubtedly he can make the same charge for its carriage.

Here two companies of artillery in the army of the United State sought transportation with their arms, equipments, and ammunition. The plaintiff, as surgeon in the army, was ordered to accompany the troops, and for him and his family and his property transportation was also sought as part of the general transportation for the whole command. On arrival at Hannibal the amount of compensation for the entire transportation, which included carriage of men and property, was agreed upon and was subsequently paid. It is to be presumed when the compensation was fixed that the company took into consideration not merely the peculiar kind of property carried by the troops, which could hardly be treated as simple baggage of travellers, but also the property besides baggage possessed by the plaintiff and his family. The value of the unpublished treatise on veterinary surgery, and of the jewelry, as estimated by the referee, was excluded in the amount allowed. The value of the surgical instruments was properly included. Instruments of that character, in the case of a surgeon in the army travelling with troops, may properly be regarded as part of his baggage. He may be required to use these instruments at any time, and must, accordingly, have them near his person where they can be had upon a moment's notice. Whether the table silverware of the plaintiff, although of a very limited amount, can be regarded in the same manner, admits of much doubt. It does not appear that the plaintiff or his family had any occasion for this ware on the cars, or even that they carried it with any intention of using it on the route. It is not, however, necessary to charge the defendant that it should be treated as baggage. Its value may be properly included in the amount of damages, considering it only as part of the property which the company received as a common carrier of goods, and against the loss of which, from any cause but inevitable accident or the public enemy, it was, as such carrier, an insurer to the plaintiff.

We see no error in the judgment of the Circuit Court, and it is accordingly

AFFIRMED.


text: Talk:Hannibal Railroad v. Swift/Opinion of the Court


text:
Kearney v. Case

ERROR to the Circuit Court for the District of Louisiana; the case being this:

The act of Congress of March 3d, 1865, after presenting in its first two sections the manner in which grand and petit jurors are to be selected and impanelled in criminal cases, proceeds in its fourth thus to enact:

'Issues of fact in civil cases in any Circuit Court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or attorneys of record file a stipulation in writing with the clerk of the court waiving a jury.'

It then goes on in the same section:

'The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause, in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts to support the judgment.'

This statute being in force, Case, on the 13th September, 1868, as receiver of the First National Bank of New Orleans, brought suit against Kearney on two promissory notes owned by the bank.

Without any agreement in writing filed to have the case tried under the above-quoted act of Congress, or any agreement in writing at all, so far as the transcript of the record showed, a trial was afterwards had by the court, which rendered judgments against the defendant on the 12th of January, 1869.

Though, as above-mentioned, no agreement to submit in writing appeared or was inferable, the record of the judgment showed that counsel were present on both sides when the trial was had. It ran thus:

'December 7th, 1868. This cause came up for trial-J. D. Rouse and Elmore and King, for plaintiff; J. G. L. Bright and Bradford, Lea, and Finney, for defendants-when, after hearing the pleadings, evidence, and argument, the court considering the same, it is ordered, adjudged, and decreed that Charles Case do recover, &c., &c.'

A writ of error was applied for and obtained by the defendant, on the 28th of January, 1869, and filed on the same day; a citation being issued and served on that day.

On the 6th of November, 1869, a paper bearing date the 19th of October, 1869, and signed by the plaintiff, and by the counsel for the defendant, was filed in the court below, which contained an agreement by them that the statement of facts set forth therein should be 'the statement of facts for the writ of error returnable to the Supreme Court of the United States.' There was no bill of exceptions.

On the transcript of such a record the case came here. The question now was what the court should do on such a record.

Mr. T. J. Durant, for the plaintiff in error-considering that the recorded presence of the counsel showed an agreement to waive a jury, and was tantamount or superior to a copy of an agreement in writing, filed with the clerk, such as the act of Congress of March 3d, 1865, contemplated but did not exact as absolute condition for a trial by the court, and that a case for review was sufficiently made by the paper agreed on and signed by the two parties, and filed of record-argued the case upon its merits; arguing afterwards that if the court should be of opinion that on such a record the merits could not be gone into, then, still, and certainly, the judgment ought not to be affirmed; but ought rather to be reversed; for if the absence of an agreement to waive a jury was sufficient to prevent a review, it was equally sufficient to show that the court had acted unconstitutionally in trying without consent of parties or their counsel the issue itself.

But if not reversed it ought to be remanded for a new trial. The statement was indeed agreed on by counsel, and was not a 'finding' by the court. But it fell within Insurance Company v. Tweed. There counsel for both parties in this court had agreed to certain parts of the opinion of the court below, as containing the material facts of the case, and to treat them as facts found by that court though not so found. That agreement of counsel was held as good as a finding under the act of March 3d, 1865. So the statement here was filed after the judgment. But in this point it was saved by Flanders v. Tweed; for there the statement of the judge had not been filed till three months after the judgment. But the case being (as is this one) from Louisiana, where the civil law practice prevails, and the parties having meant to put the case in form for review, and having believed that it was so put in form, the court did not affirm the judgment, but sent the case back for a new trial.

Mr. B. H. Bristow, Solicitor-General, contra:

The statement of facts was not filed until many months after the issue and filing of the writ, and cannot be regarded as part of the record, or as anything on which error can be assigned. Flanders v. Tweed was a special case, and almost in terms declared not to be a precedent. And the statement there was the judge's.

Besides, in Norris v. Jackson, this court laid down the following rules as the result of an examination by it of the fourth section of the act of 1865, in reference to cases where issues of fact are submitted to the court:

'1. If the verdict of the court be a general verdict, only such rulings of the court, in the progress of the trial, can be reviewed as are presented by bill of exceptions, or as may arise on the pleadings.

'2. In such cases, a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury.

'3. That if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict, which raises the legal propositions, or they must present to the court their propositions of law, and require the court to rule on them.

'4. That objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.'

Here the court found no special verdict, nor does the statement which was filed after judgment even purport to have been submitted to the court, or to set forth the facts upon which its judgment was founded. In the latter respect, more especially, is the case under consideration clearly distinguishable from Insurance Company v. Tweed, where certain parts of the opinion of the court below, which appeared in the record, having been agreed to by the parties as containing the material facts of the case, were treated here as facts found by the court.

As there is no question of law open to re-examination here, there being no bill of exceptions nor anything upon which error can be assigned, the judgment must be presumed to be right, and on that ground should be affirmed.

In this view, it is thought unimportant to argue merits.

Mr. Justice MILLER delivered the opinion of the court.

title: Kearney v. Case


text: Talk:Kearney v. Case

title: Talk:Kearney v. Case


text:
Kearney v. Case/Opinion of the Court

No question arises on the process or pleadings; there is no bill of exceptions, and the plaintiff in error relies on what purports to be a statement of facts in the case to show the error of which he complains. That statement is signed by the defendant in error and by the counsel for the plaintiff; and does not profess to be facts found by the judge. The writ of error had been sued out nine months before this paper was signed and filed with the clerk.

It needs no argument to show that this court cannot look into such a paper as part of the record, nor make it the foundation of revising the judgment, though both parties consent to it. The case here must be tried on the rulings of the court below on what was before it, and this must appear by the record; and if the facts are to be considered they must appear by bill of exceptions, or by an agreed statement submitted to the court for its judgment, or by the finding of the court under the statute. It cannot be permitted for the parties, by consent to make up a case for this court after it has passed from the control of the court below. The case of Insurance Company v. Tweed is not a parallel case. There the statement, such as it was, was made by the judge, and on its he founded his judgment. It was made and filed at the time the judgment was rendered, and, although defective in many respects, there was sufficient in it to present the legal propositions, if the confused character of the paper was waived. This the counsel here desired to do, and the court permitted. We are all of opinion, therefore, that the paper called a statement of facts must be disregarded.

But what judgment must follow? If the transcript of the record contained the written agreement of the parties submitting the case to the court, as provided by the act of March 3d, 1865, we should have no difficulty in affirming the judgment. But not only is there no such paper found, but there is no statement anywhere in the record that the parties did agree, either in writing or otherwise, to submit the case to the court.

The Judiciary Act of 1789, § 12, declares that the trial of issues in fact in the Circuit Courts shall, in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury. This provision and that found in the seventh amendment of the Constitution, adopted after the Judiciary Act, namely, 'that in suits at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,' constituted the only legislative rule for the Federal courts, except in Louisiana, until the act of 1865. Undoubtedly both the Judiciary Act and the amendment to the Constitution secured the right to either party in a suit at common law to a trial by jury, and we are also of opinion that the statute of 1789 intended to point out this as the mode of trial in issues of fact in such cases. Numerous decisions, however, had settled that this right to a jury trial might be waived by the parties, and that the judgment of the court in such cases should be valid. Notwithstanding, however, the number of cases in which the waiver of this right is mentioned, and either expressly or tacitly held to be no objection to the judgment, it is remarkable that so little is said as to the mode in which this waiver shall be made to appear. In most of the cases it is somewhere in the record stated affirmatively that the parties did waive a jury, or did consent to the trial by the court without a jury. In the case of Bank of Columbia v. Okely, the court held that there was an implied waiver of this right when the defendant made his note negotiable at the Bank of Columbia, there being in the charter of that bank a provision authorizing the collection of such debts by a summary proceeding, which did not admit of a jury trial. In Hiriart v. Ballon, where a summary judgment was rendered against a surety in an appeal bond, it was held that the defendant, by becoming surety in a court whose rules provided for such summary judgment, had waived his right to a trial by jury. It seems, therefore, that both by express agreement in open court, and by implied consent, the right to a jury trial could be waived. But as was shown in the recent case of Flanders v. Tweed, this court had held that no review of the decision of the court below could be had of any ruling at the trial where the parties had consented to accept the court, instead of a jury to decide issues of facts.

In this state of the law the act of 1865 was passed. The first two sections are devoted to prescribing the manner in which grand and petit juries shall be selected and impanelled in criminal trials. The fourth section enacts that issues of fact in civil cases, in any Circuit Court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or their attorneys of record, file a stipulation in writing with the clerk of the court waiving a jury. It then proceeds to prescribe the mode of finding the facts, and the effect to be given to such finding, and provides for a review of the case by this court. The manner in which the record is to be prepared for this and the extent of the inquiry in this court are specifically pointed out.

The question arises on this statute whether this mode of submitting a case to the court without a jury was intended to be exclusive of all other modes, so that if there is no stipulation in writing waiving a jury, there is error, for which the judgment must be reversed. Although the language of the section might admit of that construction, it is not the only one of which it is susceptible. As stated in the case already referred to, of Flanders v. Tweed, the main purpose of the act undoubtedly was to enable the parties who were willing to waive a jury to have the case reviewed on writ of error when tried by the court alone. This was rendered necessary, as shown by Mr. Justice Nelson in the opinion in that case, by the former decisions, based on the idea that in such cases the court did not sit as a court of law, but as quasi arbitrators. To remove this difficulty, the statute provided a mode by which the parties who agreed to waive a jury should have the benefit of a writ of error to the rulings of the court on questions of law. The language of the section is that the stipulation may be filed with the clerk of the court, which is undoubtedly designed to enable the parties to make agreements in vacation; and it is required to be in writing, to prevent either party demanding a jury unexpectedly at the trial. In those courts where juries are called from a great distance and detained at a heavy sacrifice, the courts usually give jury trials the preference. The benefit, therefore, of an announcement by which the number of these, trials is diminished, and the case placed in an attitude to be taken up at the convenience of the court and the parties is obvious. We cannot believe that Congress intended to say that the parties shall not, as heretofore, submit their cases to the court unless they do so by a written stipulation, but that it was the intention to enact that if parties who consent to waive a jury desire to secure the right to a review in the Supreme Court of any question of law arising in the trial, they must first file their written stipulation, and must then ask the court to make a finding of such facts as they deem essential to the review, and ask the ruling of the court on points to which they wish to except. If this is not done the parties consenting to waive a jury stand as they did before the statute, concluded by the judgment of the court on all matters submitted to it. This we understand to be the effect of the opinion in Flanders v. Tweed.

But, although a written stipulation in the Circuit Court is essential to a review in this court, is the presence of the agreement or its copy in the transcript sent here indispensable? A copy of it should come up, as observed by Mr. Justice Nelson, and that is the more appropriate evidence of compliance with the statute. Still we are not prepared to say that if it shall affirmatively appear in any other part of the record proper, that such a writing was made by the parties, that it will not be sufficient here. If, for instance, it is stated in the finding of facts by the court, or in the bill of exceptions, or in the record of the judgment entry, that such a stipulation was made in writing, the record would show that the condition in which a review is allowed existed, and we would not feel at liberty to contradict the record in this respect. In a case where there is no evidence that it was submitted in writing under the statute, but the record shows affirmatively that the parties waived a jury, we hold such evidence of waiver to be sufficient to support the judgment, but not sufficient to authorize a review of the rulings of the court at the trial. But the record before us contains no statement that the parties agreed in writing to submit the case to the court, nor any express statement that they waived a jury at all. The language of the judgment is that

'This cause came up for trial; J. D. Rouse and Elmer and King for plaintiffs; G. L. Bright and Bradford, Lea, and Finney, for defendants; when, after hearing the pleadings, evidence, and argument, the court considering the same, it is ordered, adjudged, and decreed,' &c.

Is this court at liberty to infer from the entry a waiver of the right to a jury trial? When we consider the cases already cited, in which such a waiver has been implied, and that the right to have a jury when a party demands it is so universally known and respected, we think that it is almost a necessary inference, where a party is present by counsel and goes to trial before the court without objection or exception, he has voluntarily waived his right to a jury, and must be held in this court to the legal consequences of such a waiver. But we are not prepared to go further.

If the state of the pleadings presents issues of fact to be tried, and there is nothing to show that the party complaining of the error was present by himself or counsel at the trial, and no jury was called, we think it is error for the court to try those issues without a jury, because there can be no presumption that the party has waived his legal and constitutional right to have a jury.

The record before us presents, in the light of these views, a case where the parties consented to waive a jury, but did not take the steps necessary to secure the right to a review of the findings of the court as provided by statute.

There is, therefore, no error of which we can take cognizance, and the judgment of the Circuit Court is

AFFIRMED.

title: Kearney v. Case/Opinion of the Court


text: Talk:Kearney v. Case/Opinion of the Court


text: Miller v. Brooklyn Life Insurance Company


text: Talk:Miller v. Brooklyn Life Insurance Company


text:
Miller v. Brooklyn Life Insurance Company/Opinion of the Court

ERROR to the Circuit Court for the District of Maryland; the suit being one by Mrs. H. Miller against the Brooklyn Life Insurance Company to recover $5000, insured by her husband, Walter Miller, for her benefit, on his own life.

The evidence proved, or tended to prove, the following case: The insurance company-a stock company, not a mutual one-being desirous of taking risks in St. Louis, appointed Dutcher & Fasset their general agents for that place, and gave to them, as they did to all their general agents, a printed book, showing to them their powers as agents, and containing the instructions under which the company meant that they should act. The book contained these passages:

INSTRUCTIONS TO AGENTS.

Agents must not deliver policies until the whole premiums are paid, as the same will stand charged to their accounts until the premiums are received, or the policies returned to the office.

POWERS OF AGENTS.

Agents are not authorized to make, alter, or discharge contracts, waive forfeitures, name an extra rate for special risks, or bind the company in any way; their duties being simply to obtain applications for insurance, to collect and transmit premiums, and, generally, to be the medium of communication between the policy-holder and the company.

Agents are not authorized to write the receipt of premium, or make any indorsement whatever on the policy. The president or secretary are alone authorized to sign receipts for premiums on the part of the company. When a receipt is delivered to a policy-holder by an agent, such agent must countersign the same as an evidence of payment to him.

The said Dutcher & Fasset being thus established as the recognized general agents of the company, Walter Miller, the husband, then of St. Louis, applied, in that place, June 19th, 1868, for a contract of insurance for his wife's benefit, to Dutcher & Fasset, general agents of the insurance company in the State of Missouri. The application, a printed form in part, was headed:

Statement required from persons proposing to effect assurance in this company, and which forms the basis of the contract.

It was stated in this paper that the assured wished to pay partly by note and partly in cash. And at the close of it these words occur:

'It is agreed by the undersigned. . . that the policy of assurance hereby applied for shall not be binding upon this company until the amount of premium as stated therein shall have been received by said company, or some authorized agent thereof, during the lifetime of the party therein assured.'

At the time of the application, the deceased having ascertained from Dutcher what was the amount of the cash portion of the premium, and what the portion to be embraced in notes, said to him:

'Send the policy to me, with the notes, and call on Solomon Scott for the cash part. He has just promised me that he will pay it.'

This Scott had been a partner in business and was a particular friend of Miller's.

The application was forwarded by the agents to the home office in New York, and in the course of a week the policy was received by Dutcher & Fasset. Miller in the meantime had gone to Maryland.

The policy, dated June 21st, 1868, and the premium notes for him to sign, were mailed to him, in a note dated July 2d, 1868, in which the agents said:

'You will find inclosed the yearly note and the six months' note, both of which you will please to sign and return us by mail. The cash payment we will get of Scott when the time arrives.'

It was stated in the policy that it was made—

'In consideration of the representations and agreement contained in the application therefor, and of the sum of $254.85 to them in hand paid, and of the annual premium of $254.85, to be paid on or before the 21st of June in each year during the continuance of this policy.'

And it was provided in it, among other things, that in case the assured

'Should not pay or cause to be paid the premium as aforesaid, on or before the day herein mentioned for the payment thereof, or any note or notes which may be given to and received by said company in part payment of any premium, &c. . . . then this policy shall cease, and be null, void, and of no effect.'

On the margin of the policy were these words:

'Agents are not authorized or permitted to waive, alter, or change any of the provisions of this policy.'

Miller signed the notes sent to him in the letter of Dutcher & Fasset, and returned them, but said nothing about the cash premium. In their letter to Miller, inclosing the policy, Dutcher & Fasset sent a receipt in this form, partly printed, and apparently as to that part a form with which the insurance company furnished all their agents:

RECEIPT.

141 Broadway, New York.

Walter Miller—June 21st, 1868—Policy No. 4447—Life—Amount of $5000—Amount of Premium, $254.85.

NOTE. CASH.

One-third loan note,  $101 94   Two-thirds cash,  $76

Cash note,      76 45 Interest on loan note,  7

---   "      " cash note,    2

$178 39    --

Received payment,

DUTCHER & FASSET,

Agents.

July 1st, 1868.

N. B. Agents MUST NOT DELIVER policies until premium is received, as no policy is IN FORCE until PAID for.

Dutcher & Fasset, as the evidence went strongly to show, frequently gave credit for the cash payment in the case of persons whom they knew would pay when called on, and in this case they sent the receipt, because, as one of them testified, they had 'confidence that they could get the money at any time they called for it.'

As it turned out, however, Dutcher & Fasset did not get the money payment from Scott, although it was a fact that Scott had promised to pay it, and there was no allegation anywhere of fraud.

The following correspondence now took place.

ST. LOUIS, July 23d, 1868.

WALTER MILLER, ESQ.,

Reese's Corner, Maryland.

DEAR SIR: The last of the month we make our report according to custom, and last evening, going home, I (the writer) called in the store and found our friend Scott intending to start East on Monday. I suggested to him that he should pay your cash part of premium as you suggested to me, but he would not listen to it at all; so we depend on you for it, the amount being $86.26, made up as follows:

"   " six months' note,......... 2


text: Talk:Miller v. Brooklyn Life Insurance Company/Opinion of the Court


text:
Avery v. United States

ERROR to the Circuit Court for the District of West Tennessee.

Avery owning a warehouse in Memphis, Tennessee, had become surety for the postmaster there appointed before the rebellion. During the war and after the government troops had driven the insurgents from Memphis, and were themselves in military occupation of the place, the treasury agents of the United States taking possession of the house (under the act of Congress, as was stated in the brief of Avery's counsel, relating to captured and abandoned property), leased it to one Ford, who occupied it from September, 1862, till the same month in 1865, paying a monthly rent which amounted in all to about $7000. The rebellion being suppressed, and Avery having returned to Memphis, the United States sued him in the court below as surety on the postmaster's bond, and in March, 1867, got judgment against him for $5023, and issued execution.

In this state of facts, which for the purposes of this case, seemed to be conceded on both sides, Avery now, May, 1869, filed a petition in the same court in which the judgment had been got, setting forth the fact of the judgment and execution, the previous occupation of this property by the United States, and the receipt by rental agents of the United States, and payment into the Federal treasury of rent for it amounting to the sum of $7000, and praying the court to stay proceedings on the execution and to have the judgment declared satisfied. The ground of his petition, of course, was the alleged fact that the government had received rents from his warehouse, for a sum larger than the amount of their judgment, a fact in proof of which he annexed to his petition copies of the rental agent's receipts. As a reason why he had not presented his demand by way of set-off on the trial of the suit against him as the postmaster's surety, he alleged that he did not know at that time that the money was in the treasury of the United States, nor did he receive knowledge of that fact or evidence on which to found his demand until shortly before presenting his petition. When filing his petition he moved also for a writ of audit a querel a; asking for it on the facts and statements contained in his petition.

The court below, without any formal pleadings, denied the prayer of the petition, and also refused to grant the writ. To this, its action, the present writ of error was taken.

Messrs. Albert Pike and R. W. Johnson, for the plaintiff in error; Mr. B. H. Bristow and C. H. Hill, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Avery v. United States


text: Talk:Avery v. United States

title: Talk:Avery v. United States


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

Conceding, for the purposes of this suit, that the order of the Circuit Court in the premises is a final judgment, within the meaning of the 22d section of the Judiciary Act, to review which a writ of error will lie, did the court err in the disposition it made of the case?

The lease of the house was authorized, if the owner of the property was voluntarily absent from it and engaged in the rebellion, and, as the Federal military forces during the term of the lease occupied Memphis, it is fairly to be inferred that Avery had abandoned his house under circumstances which warranted the officers of the government in taking possession of it; and the presumption is, in the absence of an averment in the petition to the contrary, that these officers discharged their duty, and paid into the treasury the money received by them for the rent of this property long before the suit against Avery was tried in the Circuit Court. If so, and the United States, on this account, were indebted to Avery (a point on which we express no opinion), it was the duty of Avery to plead this indebtedness by way of set-off, to the action brought against him. It is a familiar principle that no one can be relieved against a judgment, however unjust he may consider it, if he had a defence and, through his own fault, failed to present it. Avery is in this predicament. It will not avail him to say that he did not know, when the suit was tried, that the money was in the treasury, for it was his business to have informed himself on the subject. This he could easily have done, by communicating with the bureau of the Treasury Department where the accounts of the leases and sales of abandoned property were kept, and this inquiry would have resulted in obtaining evidence equally available for his purpose as that which accompanies his petition. It would lead to endless embarrassments in the administration of justice, if a party were permitted to reopen a judgment on the ground that he had a defence which he did not present, because ignorant of it, but which, the court can see, he could have known if he had used reasonable diligence to ascertain it. It is impossible to suppose that Avery, on his return to Memphis after the war, was not informed of the state of things concerning the occupation of his house during his absence, and yet he institutes no inquiry on the subject, and when subsequently sued by the United States for a large demand, allows it to pass into a judgment without the assertion of any claim for the use of his property. Under these circumstances he cannot be permitted to do, two years after the rendition of the judgment, what he should have done on the trial of the cause.

It follows, as the result of these views, that the Circuit Court did not err in overruling the motion to recall the execution and satisfy the judgment.

Nor did it err in refusing the writ of audit a querel a, because this writ does not lie, where the party complaining has had a legal opportunity of defence and has neglected it.

Besides audit a querel a is a regular suit in which the parties may plead and take issue on the merits, and cannot, therefore, be sued against the United States, as in England it could not against the Crown.

JUDGMENT AFFIRMED.


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


text:
Wadsworth v. Warren

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

The action in the court below was in covenent and brought by Wadsworth, who resided in New York but owned property at Chicago, against J. B. Warren and W. Fleming, to recover rent upon a written lease of the same, alleged to have been executed by the said Warren and Fleming.

Fleming being a bankrupt, Warren alone defended. He appended to his plea denying that he owed the money demanded, a notice that he would give in evidence on the trial that he and one Osgood agreed, with John De Koven, the agent of the plaintiff, to rent the property mentioned, and that he signed the lease with the express understanding that Osgood should also sign it; that after he, Warren, signed the lease De Koven sent it to Wadsworth, the plaintiff, in New York, where it was executed by the plaintiff and returned to De Koven to be executed by Osgood, but that Osgood refused to execute it; that afterwards Fleming agreed with De Koven, as agent of the plaintiff, to take the premises for the same time and upon the same terms that the defendant and Osgood had agreed to take them; that when the lease was signed by Fleming the defendant objected to having his name on the lease with Fleming; that De Koven said it would make no difference, that he would release the defendant on the back of the lease; that he wanted to use the lease signed by the plaintiff and Warren, as it would obviate the necessity of sending to New York to get the plaintiff to sign a new lease; that De Koven delivered the lease to Fleming alone; that the defendant never took possession of the property demised, and never paid or was called upon for rent until after the bankruptcy of Fleming; that the defendant never consented to be jointly bound with Fleming, or to be bound at all by the covenants in the lease, and that it was expressly understood between the defendant and De Koven that 'he would, as agent of plaintiff, release defendant on the back of the lease before he delivered the same to Fleming.'

The lease showed the signatures and seals of Warren (the defendant), Fleming (the bankrupt), and Wadsworth (the landlord and plaintiff), and their names were also inserted without erasures or interlineations in the body of it. It was dated the 20th of April, 1867.

The defendant Warren did not set up that any portion of the rent had been paid, but sought to establish as a defence the facts set forth in the notice above referred to. He testified that Osgood and himself agreed to take the premises for five years, at $4800 a year, and that Osgood then went to Michigan, where he resided; that shortly after Osgood went, a Mr. Jenning came to the witness with a lease which he believed was in blank, and requested him to sign it, saying that he got up all the plaintiff's leases in this way and sent them to New York for his signature; that shortly after this he received a letter from Osgood informing him that he had sickness in his family, and requesting the witness to dispose of the lease; that he then went to De Koven and told him the facts as they were, not wanting, himself, to back out after he had signed anything. He further testified:

'I told him I had found Mr. Fleming willing to take the property, and willing to give good reference. Mr. Fleming and I went down to see Mr. De Koven. Mr. De Koven said he would see about it. When Mr. Osgood came, we went over to see Mr. De Koven together. While we were talking about the lease, Mr. De Koven made the remark to Mr. Osgood, 'It won't make any difference to you; you haven't signed the lease.' I told him: 'Then,' says I, 'I won't accept the lease.' Mr. De Koven then said, 'Now, Mr. Warren, I will tell you what I will do; I will accept Mr. Fleming in here; put Fleming's name in the lease instead of Osgood's, and I will indorse a release of you on the back of the lease.' I told him that was all right. Mr. Fleming signed his name while I was there, and returned it to Mr. De Koven, and left it there. I haven't seen the lease since. I never had anything to do with the document. I told De Koven, as Osgood woult not sign the lease I would not accept. De Koven said he would put in Fleming's name instead of Osgood's, as Osgood hadn't signed it, and he would indorse to me a release on the back of the lease, giving as a reason for doing so, that it would save the time of sending the lease to New York.'

This testimony was supported by that of Osgood and Fleming.

On a duplicate of the lease, signed and sealed, like the other by Wadsworth (the landlord and plaintiff), and by Warren and Fleming, the following indorsement, executed by Fleming, appeared:

'ASSIGNMENT. 'State of Illinois, Cook County, ss.

'In consideration of one dollar, to me in hand paid, the receipt whereof is hereby acknowledged, I have sold, assigned, and set over to the said William Fleming, all my right, title, and interest to the within lease; said Fleming assuming all liabilities under said lease, and releasing me, the undersigned, from any and all liabilities whatever under the same.

'Given under my band and seal, at Chicago, April 27th, A.D. 1867.

'J. B. WARREN. [L. S.]'

On the other hand, De Koven, the plaintiff's agent, testified that Warren and Osgood, in the first instance, agreed to take the property upon the terms mentioned in the lease, that he had leases signed in blank by Wadsworth, that a lease was made out and that Warren signed it; that after the season for renting was over, Warren requested witness to release him and allow Fleming to take the lease; that the witness declined to do this, as Warren was the only person he looked to for payment of the rent, but consented to take Fleming in the place of Osgood; that the leases were then filled out in duplicate, and Warren and Fleming signed them; that he gave one to Fleming and Warren and retained the other, and that the assignment from Warren to Fleming was not on the duplicate at that time; and the witness testified distinctly that he did not agree to release Warren.

The plaintiff requested the court to instruct the jury:

'First. The jury will disregard all evidence given in behalf of the defendant tending to show any verbal agreement or understanding between De Koven and the defendant Warren, to the effect that De Koven would release Warren from the covenant in the lease, or that Warren should not be bound by the lease.

'Second. The jury, upon the evidence given, should find the issue for the plaintiff.'

But the court refused to give either of these instructions, and charged substantially as follows:

'The lease as produced here presents a legal claim, prim a facie, and the defendant is bound by it; and if there was nothing more presented, Warren would be bound, because he, having signed the lease, would be considered in law to be the party to it, and prim a facie to have accepted it. If not accepted by Warren, he would not be bound to pay. If a lease was signed by Warren on condition that Osgood was to be a party to it, and if Osgood refused to sign it, with the knowledge of Wadsworth or his agent, De Koven, then Warren would not be bound to accept that lease. [If Warren refused to accept the lease with Fleming, and the agent of Wadsworth agreed that to save trouble of sending another lease to Wadsworth for his signature, if Warren would put his name to the lease he should not be bound, and that Warren did not accept the lease with Fleming, then Warren would not be bound on the last lease.]

'Then come the witnesses on the part of the plaintiff. And then if all the matter is laid aside that was presented by the defendants' witnesses, and you take up the case upon the plaintiff's testimony, then, if the evidence as to the acceptance of the lease by Warren does not satisfy the jury that it was not accepted by Warren in the way I mention-then comes the alleged promise of De Koven, the agent of Wadsworth, that he would release Warren from the lease-that is, a verbal promise, not executed to this day; and if such was the agreement, then Warren would have to look to De Koven for a breach of that agreement, and would have no defence here.

['As to that assignment on the lease, if this was all the understanding between these parties, that Mr. Warren was not to be liable, there was his name, and it would show; and if Fleming wanted to dispose of it or do anything with it, he could not do it legally without Warren's consent. That assignment was proper to vest the whole interest on paper in the lease in Fleming, which probably was the object of it, the consideration being nominal]

'You will have to apply the testimony. The best way I can instruct you is to take up that given on the part of the defendant, which we admit so as to satisfy the jury on the subject of acceptance; and then, if they are not satisfied with that, the mere verbal promise of De Koven to release Mr. Warren would not be good defence here, I think, but would leave Warren to turn over on De Koven for a breach of his promise; and that is the way, I suppose, the thing might turn possibly on your verdict for the plaintiff; but we leave the matter with you to make the best you can of the case.'

To the parts of the charge within brackets the plaintiff excepted.

Mr. J. Van Arman, for the plaintiff in error:

The case, in its best view for the defendant below, shows that all parties intended that the lease should take effect as a legal instrument, and operate, in form, at least, as a demise to Warren and Fleming, and that Warren should be subsequently released from his covenants in the lease. The very term release implies that the party who is to have the benefit of it has, at the time of receiving such benefit, already assumed an obligation from which he is thereby discharged; and the assignment of all his interest in the lease made by Warren to Fleming, seven days after the lease was made, shows that they both then understood that they were jointly vested with the title to the demised term. The question then is, whether a verbal agreement, at the time of the execution of a deed, that one of the parties to it shall be released from the covenants contained in the deed, or that he shall not be bound by these covenants, can be given in evidence to defeat an action brought for an alleged breach of them. It is settled by authorities both ancient and modern that it cannot be.

The lease, after it was signed and sealed by Warren and Fleming, was delivered by Fleming in Warren's presence to De Koven, the plaintiff's agent. When a deed is delivered to the grantee or obligee, and retained by him, he setting up that the delivery was absolute, parol proof that the delivery was conditioned or otherwise than absolute, is incompetent in a contest between such obligee and the obligor.

The release was never executed, nor was De Koven ever called upon to execute or procure the execution of it. To be effectual it must have been evidenced by a sealed instrument executed by the plaintiff himself, or by his duly authorized agent. It will not of course be contended that a mere verbal agreement to release a party from his covenants can bar a suit for the non-performance of them.

Messrs. E. Anthony and C. F. Peck, contra, submitted that there was no error in the charge, and that the verdict was warranted, and is supported by the testimony.

Mr. Justice STRONG delivered the opinion of the court.

title: Wadsworth v. Warren


text: Talk:Wadsworth v. Warren

title: Talk:Wadsworth v. Warren


text:
Wadsworth v. Warren/Opinion of the Court

Were this case before us on a motion for a new trial we might feel constrained to send it back to another jury. But it has been brought here by a writ of error, and we can, therefore, reverse the judgment only for errors of law apparent in the record.

The testimony respecting the circumstances attending the transaction in question is contradictory. On the part of the defendant it is that he refused to accept the lease without having Osgood bound with him; that the plaintiff's agent agreed to take Fleming in his and Osgood's place, and agreed that when Fleming signed the contract he would indorse on it a release of Warren, saying it would avoid the necessity of sending a new lease to Wadsworth, the plaintiff, for his signature. On the other hand the plaintiff's agent denies that he promised to release Warren, and states that he told him he was the only man he looked to for the rent. He states further that the defendant brought Fleming to him, that both signed the lease and a duplicate thereof, and that the duplicate was delivered to Fleming and the defendant. The lease is dated April 20th, 1867, and on the duplicate retained by the plaintiff's agent there appears an assignment of all his interest in the lease by the defendant to Fleming. This assignment is dated April 27th, 1867, but it was evidently made on the day on which Fleming's signature to the lease was made, for there is no evidence that the duplicate retained by the plaintiff's agent was ever seen by the defendant after Fleming signed it. Coupling this with the evidence that De Koven, the plaintiff's agent, had agreed to take Fleming in the place of Osgood and Warren, and had said that signing the instrument in the manner in which it was signed, would avoid the necessity of sending a new lease to Wadsworth, the lessor, for his signature; coupling it also with the other evidence, given by the defendant himself, that he did not accept the lease, or deliver the deed, we think it was a question to be submitted to the jury whether the contract had ever been consummated, or, in other words, whether it had been delivered and accepted as the contract of the defendant. It was not, therefore, erroneous to refuse the instruction prayed for, namely, 'that the jury, upon the evidence given, should find the issue for the plaintiff.'

The other prayer of the plaintiff for instruction was substantially granted. The court, when speaking of the alleged promise of De Koven to release Warren from the lease, said it was a verbal promise not executed, and, 'if such was the agreement, Warren would have to look to De Koven for a breach of it, and would have no defence here.' And again the court said: 'The mere verbal promise of De Koven to release Mr. Warren would not be a good defence here, I think, but would leave Warren to turn over on De Koven for a breach of promise.'

The remaining exceptions taken to the charge cannot be sustained. It may be admitted, as contended for, by the plaintiff in error, that when a deed has been delivered, and the delivery has been accepted, a verbal agreement between the parties, made at the time of the delivery, or previous thereto, that one of them should be released from the covenants contained in the deed, cannot defeat an action at law brought for an alleged breach of those covenants; but the charge of the court was in harmony with this doctrine. It may also be conceded that there can be no conditional delivery of a deed to the grantee, or covenantee, therein named; but nothing in the charge intimated that there could be. The question submitted to the jury was, whether there had been any acceptance of the lease by the defendant. This was equivalent to submitting the inquiry, not whether the deed had been delivered on condition that Warren should be released afterward, but whether it had been delivered at all as the deed of the defendant. That such a submission was proper, in view of the evidence, we have already said.

JUDGMENT AFFIRMED.


text: Talk:Wadsworth v. Warren/Opinion of the Court


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Perrin v. United States (79 U.S. 315)

APPEAL from the Court of Claims dismissing a petition before it, as not 'founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States;' confessedly the only cases, in which the court, by the statutes creating it, has jurisdiction.

Mr. W. W. Boice, for the appellants; Mr. Akerman, Attorney-General, and Mr. C. H. Hill, contra.

Mr. Justice CLIFFORD stated the case and delivered the judgment of this court.

title: Perrin v. United States (79 U.S. 315)


text: Talk:Perrin v. United States (79 U.S. 315)


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Perrin v. United States (79 U.S. 315)/Opinion of the Court

The petitioners alleged in the court below that they were naturalized citizens of the United States; that just before the 13th of July, 1854, they arrived at San Juan del Norte, or Greytown, possessed of a valuable invoice of merchandise, with the intention of establishing a commercial house in some part of Central America; that on that day the town of San Juan was bombarded and burnt by the United States sloop-of-war Cyane, and all the merchandise, books, and papers of the petitioners, together with their personal effects. Appearance was entered by the Assistant Attorney-General, and he demurred to the petition because it did not set forth facts sufficient to constitute a cause of action, and the court below sustained the demurrer and dismissed the petition. Whereupon the petitioners appealed to this court, and alleged that the decision sustaining the demurrer was erroneous, but the court here, inasmuch as the claim is not one 'founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States,' concurs in opinion with the Court of Claims and

AFFIRMS THE DECREE DISMISSING THE PETITION.


text: Talk:Perrin v. United States (79 U.S. 315)/Opinion of the Court


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Rogers v. Ritter

ERROR to the Circuit Court for the District of California; the case being this:

Rogers brought ejectment against Ritter in the court below to recover a lot of land in San Francisco, known by the name of Yerba Buena. The plaintiff having given in evidence various deeds, and rested, the defendants offered a writing, dated Yerba Buena, December 5th, 1845, purporting to be a petition by one Briones for the grant of the lot, under which was written an instrument dated December 7th, 1845, purporting to be a grant of the lot by 'the citizen Jos e de la Cruz Sanchez, justice of the peace of the jurisdiction.' The 'grant' was objected to on the ground that the name of Sanchez was forged. To prove its genuineness, the defendant called three witnesses. One Sears, who had been clerk in the recorder's office of San Francisco for eight years, and having the especial charge of the records; R. C. Hopkins, who had resided in California for fourteen years, had had charge of the Spanish archives in the office of the Surveyor-General of the United States for California for nine years, 'whose business called upon him to investigate questions of the genuineness of documents,' and who 'thought that he had a facility from his profession of detecting writing which was not genuine;' and one Fisher, who had been in California for fourteen years, and was secretary, interpreter, and custodian of the archives for over four years, and until its expiration, of the land commission of the United States, which sat in California under the act of March 3d, 1851.

In order to lay a foundation for his competency each witness, as called, was requested to state whether he was acquainted with the handwriting of Sanchez, and to give his means of knowledge. Each and all answered that they were familiar with it, and told how they knew it.

Sears had frequently seen it in his office, and had, many times, made certified copies of the papers to which it was attached, for the use of the courts, and knew it to his own satisfaction. In speaking of it and the handwriting of another person, he said, 'I have seen so many instruments and papers passing through my hands that these signatures (naming them) are like household implements with us.' But he had not corresponded with Sanchez nor actually seen him write.

Hopkins had examined the correspondence of Sanchez, while justice of the peace, with the governor, and other papers in the archives to which his signature was affixed, quite often, and conceived himself, therefore, well acquainted with it; 'I think,' was his testimony, 'no one living is so familiar with these California archives as I am.' But he had not corresponded with Sanchez nor actually seen him write.

Fisher testified that he thought that he would know the signature of Sanchez, because he had the custody, during the whole term of the board of land commissioners, of all the depositions taken by them, and acted as interpreter for those who could not speak the English language. The party making the depositions was required, as the witness testified, to sign them after one of the commissioners had administered the oath. Then they passed into Fisher's hands, as secretary, who indorsed them and put them among the papers of the case. Sanchez's testimony with many others, was taken, and, although Fisher could not swear he had actually seen him write his name, he believed he had, and, at any rate, he should know his signature from having seen it to the depositions.

The Circuit Court, after the witnesses had stated the manner in which they formed their knowledge of the handwriting of Sanchez, allowed them-exception being duly taken-to testify whether his signature to the grant in controversy was genuine or not. And they testifying that they believed it to be genuine, the grant was allowed to go to the jury, no objection being taken to it from the fact of its purporting to be made by a 'justice of the peace of the jurisdiction,' A. D. 1845.

Verdict and judgment having gone for the defendant the case was brought here.

It was one incident of the trial that Sanchez himself, who was alleged to have made the grant, swore that though he had been 'a justice of the peace of the jurisdiction' in 1845, he had never made this grant nor any grant of the lot in controversy; as it was another that Hopkins, who was examined to rebut the evidence of Sanchez, testified that he 'knew it to be generally the case, or sometimes the case, that in regard to the genuineness of the signatures and acts of officers of the old Mexican government, the true test is not what they will swear to, but the testimony of experts.'

Messrs. M. Blair and F. A. Dick, for the plaintiff in error; plaintiff also below.

1. The so-called grant purported to be by a 'justice of the peace of the jurisdiction.' It is a fact shown by various laws of Mexico, by the history of the Departmental Assemblies of California, and by the acts of the governors of California, and by judicial decision, that no such officer had power to grant land after the end of the year 1843. It was a right of the alcaldes of the city of San Francisco. The grant, therefore, even if genuine, should have been excluded from the jury.

2. The court below erred in admitting what was but the opinion of Sears, Hopkins, and Fisher, the defendant's witnesses, as evidence that the signature of Sanchez was genuine. The 'knowledge' of the signatures which these witnesses had was acquired, not from having seen Sanchez write, nor from having corresponded with him, but from seeing writing supposed to be his, and from nothing more. The testimony was, in truth, but a comparison of handwritings, and did not render opinions of the persons so comparing the handwriting, legal evidence.

There should the less willingly be a departure from ancient rules of caution, as Sanchez swears that the signature is not genuine.

Mr. Justice DAVIS delivered the opinion of the court.

title: Rogers v. Ritter


text: Talk:Rogers v. Ritter

title: Talk:Rogers v. Ritter


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Rogers v. Ritter/Opinion of the Court

The objection to the grant, which, supposing it genuine, is insisted on in the first place, in this court, by the counsel of the plaintiff in error, presents a question which in the state of the record this court is not called upon to decide; for it does not appear that the objection was taken in the court below. It is true that the grant was attacked there, but on an entirely different ground. The main controversy concerning it was, whether or not it was genuine. Its validity, if genuine, does not seem to have been questioned. We are not, therefore, required to travel through the various laws of Mexico, the acts of California governors, and the proceedings of Departmental Assemblies to determine at what period of time the powers of justices of the peace, acting as alcaldes, to grant building lots within their jurisdiction, ceased.

It is insisted, in the second place, that comparison of handwriting is in no case legal evidence, and as it was admitted to prove the genuineness of the disputed paper, the judgment should, on that account, be reversed. It is certainly true that the ancient rule of the common law did not allow of testimony derived from a mere comparison of hands, and equally true that there has been a great diversity of opinion, in the different courts of this country, in relation to this species of evidence. But in England this rule of the common law, as it respects civil proceedings, has been abrogated by the legislature, so that in the courts there, at the present day, in civil suits, the witness can compare two writings with each other, in order to ascertain whether they were both written by the same person. It is, however, not necessary for the purposes of this case to discuss the subject in all its bearing, nor to depart from the rule laid down by this court in Strother v. Lucas, that evidence by comparison of hands is not admissible when the witness has had no previous knowledge of the handwriting, but is called upon to testify merely from a comparison of hands. The witnesses who testified in this case had previous knowledge of Sanchez's handwriting. It is true this knowledge was not gained from seeing him write, nor from correspondence with him, but in a way equally effectual to make them acquainted with it. Sanchez was for many years, under Mexican rule in California, in official position, acting as justice of the peace, transacting the duties of alcalde, corresponding with the governor, and exercising for a time the power conferred upon him to grant small parcels of land to deserving persons. Necessarily, in the course of the administration of the duties of his office, he had occasion frequently to attach his signature to papers of importance. These papers, after the United States took possession of the country, were deposited in the recorder's office of San Francisco, and the Surveyor-General's office, where the Mexican archives are kept. Sanchez also, as did most of the native Californians and Mexicans who had been in public life, appeared before the United States land commission, which sat in San Francisco to determine the validity of Spanish grants, and gave his depositions. These depositions, with the other papers of the commission, at the expiration of it, were taken to the office of the Land Commissioner at Washington. As no question was raised on the trial of the genuineness of these various writings-Sanchez was present and interposed no objection-they must be considered, if not as having been acknowledged by him, at least as having been proved to the satisfaction of the court.

In this condition of things, Sears, Hopkins, and Fisher were called upon to testify upon the subject of the disputed signatures; and the inquiry is, did the court err in its ruling on this point? Obviously, the evidence is not obnoxious to the objection that it is a mere comparison of hands; that is, a comparison by a juxtaposition of two writings, in order to enable a witness, without previous knowledge of the handwriting of the party, to determine by such comparison whether both were written by the same person.

The witnesses in this case were conversant with the signature of Sanchez, and swore to their belief, not by comparing a disputed with an acknowledged signature, but from the knowledge they had previously acquired on the subject. The text-writers all agree, that a witness is qualified to testify to the genuineness of a controverted signature if he has the proper knowledge of the party's handwriting. The difficulty has been in determining what is proper knowledge, and how it shall be acquired. It is settled everywhere, that if a person has seen another write his name but once he can testify, and that he is equally competent, if he has personally communicated with him by letter, although he has never seen him write at all. But is the witness incompetent unless he has obtained his knowledge in one or the other of these modes? Clearly not, for in the varied affairs of life there are many modes in which one person can become acquainted with the handwriting of another, besides having seen him write or corresponded with him. There is no good reason for excluding any of these modes of getting information, and if the court, on the preliminary examination of the witness, can see that he has that degree of knowledge of the party's handwriting which will enable him to judge of its genuineness, he should be permitted to give to the jury his opinion on the subject.

This was done in this case, and it is manifest that the three witnesses told enough to satisfy any reasonable mind that they were better able to judge of the signature of Sanchez, than if they had only received one or two letters from him, or saw him write his name once.

JUDGMENT AFFIRMED.

title: Rogers v. Ritter/Opinion of the Court


text: Talk:Rogers v. Ritter/Opinion of the Court


text: Villa v. Rodriguez

title: Villa v. Rodriguez


text: Talk:Villa v. Rodriguez

title: Talk:Villa v. Rodriguez