text:
The Eddy

ERROR to the Circuit Court for the District of South Carolina; the case being thus:

On the 25th March, 1854, the master of the schooner Mary Eddy, then at New Orleans, received on board his vessel 102 hogsheads of sugar and 21 of syrup, to be carried by sea to Charleston, South Carolina, and there delivered to Mordecai & Co., merchants of that place. The bill of lading contained the usual clause as to the payment of freight. The vessel reached Charleston safely on the 31st of March, and the master gave notice to Mordecai & Co. of her arrival and of the sugar and syrup on board for them; offering to deliver them on the payment of the freight.

Owing to some misunderstanding between the parties on the occasion of a former shipment, where, after payment of the freight, a part of the cargo had been discovered to be damaged, Mordecai & Co. were not willing to pay the freight, unless the sugars and syrups were all delivered and in their store, and after inspection by them there, were found not to have suffered injury in the voyage. They alleged that, by the usage of the port of Charleston, they had a right to have them so stored and so to examine them, before they could be called on to pay the freight. The master did not agree with them in this view of their rights; conceiving that he had a right to be paid his freight 'on the wharf,' when the sugars were put there, and to retain possession until he was paid. Conference and some partial understandings were had between the parties; and under these all the syrup, with three hogsheads of the sugar, were taken to the storehouse of Mordecai & Co. They declining, however, to pay freight on the parts as thus distributively in their possession, but insisting upon having the whole in their storehouse first, the master, who was now unlading the sugars, and had a large part of it on the wharf,-after 2 o'clock on the afternoon of the 4th of April,-gave them notice that the sugars (some of the hogsheads containing which had been more or less compressed or staved in on the voyage, and needed to be coopered) were now in good order; but that to avoid difficulty in collecting the freight he requested them to pay the amount as by the bill of lading; adding, that the sugars 'will not be delivered without settling the amount due.' He concluded:

'Should you not accede to the above, and settle the matter, the sugars will remain on the wharf until sunset, and then be stored at your expense and risk.'

Mordecai & Co. replied:

'We are prepared to give you satisfactory security for your freight-money, to be paid to you in accordance with the usages of this port, and upon your delivery of our property in compliance with your contract. If you refuse to do so we shall hold you responsible for all damages. We would add, that we are informed that there are a large number of hogsheads of sugar on the wharf. A notice of their being landed, at this late hour, will not give us time to dray them away and store them; and therefore we hold you responsible for any damage to those that are landed.'

The larger part of the 99 hogsheads of sugar remained on the wharf until sundown, and were then stored by the master in the storehouse of one Brown. A few yet in the ship were landed and stored on the next day. No agreement as to the rate of storage was made. On the evening of this same day (4th April) Messrs. Brown & Porter, the attorneys-at-law of Mordecai & Co., sent a note as follows to the master:

'We are instructed by Messrs. Mordecai & Co. to inform you that they consider their whole consignment of sugar-that on the wharf as well as that in the ship-at the risk of the schooner Mary Eddy and her owners; and that they are ready to pay you the freight upon your delivery to them of the entire consignment in accordance with the bill of lading; that from your own admission and conduct, they have reason to believe that part of the consignment is not in the condition you received it; and they have further reason to believe that this damage is not included within the dangers and accidents of the seas and navigation; that they are willing to give any security for the freight, but will not consent to pay the freight as you have demanded in your letter, when a larger portion of the consignment is in your possession, under circumstances which authorize them to believe that they may sustain considerable damage. We are also instructed to inform you that unless this matter is adjusted to their satisfaction by 10 o'clock to-morrow, they will proceed to libel the vessel.'

The master did nothing more in the way of delivery of the hogsheads. He himself averred, in an answer subsequently made in the case, 'that the sugars were examined next day in store and on the wharf by the agents of Mordecai & Co.; but that no demand was made nor any freight tendered.'

At the time the sugars were thus stored,-4th of April, 1854, they were worth $6901. The claim for freight was $641. On the 21st November, 1855, Brown, the storehouse-keeper, without the assent of Mordecai & Co., sold, to satisfy his account of storage, 51 hogsheads of the 99 stored. From the proceeds, $2314, he deducted his claim, $1919, for storage, at the rate of 25 cents a hogshead per week, and paid the balance to the schooner's agent. The remaining hogsheads were detained till January, 1856, when they likewise were sold by order of the schooner's agent, who paid $204 out of the proceeds for storage at the former rate, reserved $759 for freight and interest, and tendered $2400 for the consignment of the sugars.

When Brown, in whose stores the sugars had been placed, was about to sell to pay his storage, Mordecai & Co. applied to him to permit them, with some two gentlemen, to examine into their condition. Brown acceded to their wish, but subsequently Mordecai & Co. that the agents of the schooner objected to an ex parte survey, and directed him to refer Mordecai & Co. to them or their counsel. Mordecai & Co. then addressed, through their proctors, the same request to the proctor of the master of the vessel, and reply was made that before it could be consented to it was but fair that they should be advised of its purpose and of the use that might be intended to be made of it hereafter. The terms were not acceded to, and the inspection was not allowed.

Soon after the sugars were stored Mordecai & Co. informed the agents of the master that storage could be procured by them at the rate of 25 cents per hogshead per month, and they replied that the owner of the store in which it was would make the rate agreeable to Mordecai & Co. Subsequently, when the owner of the store demanded storage at the rate of 25 cents per week for each hogshead, instead of 25 cents per month, there was no objection on the part of the agents. Witnesses testified that 25 cents per week was an excessive charge; though the 'wharf rates' allowed 23 cents where there was no agreement.

A libel having been filed on the 5th of March, testimony was taken as to the custom of the port of Charleston as to place of payment of the freight.

Two witnesses were examined in behalf of Mordecai & Co.; one of them, a merchant in the habit of receiving consignments, stated, that with his house it had always been customary to deliver the goods on the wharf, and then to call for the payment of the freight at a reasonable time after; that this was the general practice with merchants; that Mordecai & Co. were merchants of very good reputation; that he himself had never paid freight on the wharf, and if any man were to ask him to do so, he would take it as an insult. On cross-examination he added, that he thought that by commercial law the master would have a right to demand freight on the wharf, if the party were doubtful as regarded their ability to pay, or if he expected to receive any trouble in the collection of the freight; that as to the right to demand freight on the wharf, he thought it a question of law; that as to the fact, he had never heard of a case in which it was done. The other witness stated, that he thought it was the prevailing practice to discharge and collect freight afterwards; but that though such was his practice, he would, if he ever anticipated difficulty in the collection of freight, have stored the cargo in the name of the consignee, subject to his order and the payment of freight. In opposition to this testimony, four witnesses were examined in behalf of the shipowners. One stated that he had known instances where refusals were made to deliver the cargo without payment of freight. Another, that he knew of instances where consignments were not delivered without payment of freight on the wharf; that it was his custom so to collect it, if he doubted the solvency of the house, or feared difficulty in the collection of it. A third, that in the case of small bills, to save the trouble of collecting the freight, he had ordered it to be paid on the wharf before delivering the cargo; and the fourth, that in one instance, he was refused a consignment unless he paid freight on the wharf, but that the general usage was otherwise-the practice being to call for the freight at any time before the vessel was ready for sea.

Upon this case the District Judge in whose court the libel was filed-considering that no sufficient custom had been proved concluded his opinion as follows:

'It is evident that on both sides there was a proclivity to an extreme estimate of their rights, from the occurrence previously of some matter between them which was unpleasant. In the detention of the cargo to secure the lien of his freight the master exercised a lawful right. In continuing the exercise of that detention upon property undergoing deterioration, without submitting the property to such control as could rightfully dispose of it, if he was not satisfied that under the circumstances he could not do so himself, he acted wrongfully and is liable to the consequences. And all the evidence which is before me in relation to the conduct of the master while detaining the property supports me in the conclusion that the respondent should be made liable. I pass over the fact that with property capable of division, and of which he had the right to retain a part for the freight of the whole, he insisted on retaining the whole; and that in so doing he retained an amount ten times greater than his claim, and subjected the owner to ten times the expense that was necessary. I pass this over, because in speaking of the power to retain, the language is general. But when the master in the exercise of his right did detain, it was nevertheless the property of another which he had in his possession. That possession he transfers to another-the owner of the store in which he placed the property. And it was there placed subject to the order of the master or his agent. There was no recognition of any other owner, nor discretion allowed the storekeeper to deliver the property to any person but the master of his agent. Now, it is quite clear that the right which the carrier was entitled to was simply that of detention until freight was paid. And the importance of the mode in which the goods were stored is only made to appear from subsequent events.

'It is obvious that it was forgotten that when the master retains the control of the cargo to secure his lien for freight, he is regarded as the agent of the owners of the cargo. And the conduct of the master in the management of the property in this case was inconsistent with the duties which the law in such cases devolves upon him.

'Let a report set out the value of the property at the port of delivery; from this amount let the freight be deducted; and let a farther deduction he made for the storage of the goods for sixty days; which, under the circumstances of the case, I consider a reasonable time for the master to make application for the aid of the court, in making his lien available; the balance then remaining with interest from that date, will be the amount due the libellants. As to the costs, I will divide them in the following manner. I do not sustain the libellants in what they did previous to the storage of the goods and the filing of their libel. I do not sustain what the respondents have subsequently done.'

A decree, after a report made by a master on this basis, was entered accordingly.

On appeal to the Circuit Court this decree was reversed, and it was ordered that there be allowed to Brown, for the storage of the merchandise, compensation according to a report of a master, which had been made under a reference of the Circuit Court, and which allowed 40 cents a hogshead per month. That the residue of the fund in the hands of Brown, should be paid into court. That the libellants should be at liberty at any time to apply to take it out, and that, subject to such leave, after the fund was paid into court, the libel should be dismissed with costs.

It appearing afterwards, however, on a return to this rule, that the sugars never were in the custody of the Circuit Court, the decree of the District Court was in all things reversed, and the libel dismissed with costs.

Appeal was now taken by Mordecai & Co., to this court.

Mr. Carlisle, for the appellants:

The evidence shows that the goods had been more or less damaged on the voyage; and though the libellants may have originally acted on the assumption that they had the right to the possession of the goods before the freight was demandable, yet subsequently, upon consultation with their counsel, Brown & Porter, it is plain that they receded from this. The letter of the 4th April, which they, through those counsel, addressed to the master, states that 'they are ready to pay you the freight upon your delivery to them of the entire consignment, in accordance with the bill of lading.' No reply was ever made to this offer.

We concede the right of lien for freight upon the cargo; but we submit that the consignee has the right to inspect the whole consignment before he can be called upon to pay the freight, and that the master is not entitled to detain the goods in any such way as to deprive the consignee of this opportunity of inspecting them, and of ascertaining whether they have been injured by the master's fault.

This was the rule, under the Empire, of the Ordinance, and is under the Code of Commerce. In England the same law obtains, and the decisions in this country are to the same effect. 'The shipper,' says Story, J., 'has the right, as it should seem by the maritime law, to insist upon examining the goods after they are delivered, in order to ascertain whether they are damaged or not, before he makes himself liable, at all events, for the freight.'

We admit, too, that where the transportation is by vessel, and the consignee refuses to receive, the carrier may discharge himself from further responsibility by placing the goods in store with some responsible person, for and on account of the owner. But in such case, the storehouse-keeper becomes the agent or bailee of the owner of the property. Here the property was stored by the captain, and subject to his order alone. The appellants were not even allowed to inspect the same, though two applications were made for that purpose. The goods were stored without even an agreement for the storage. In consequence of this gross negligence, the enormous charge of one dollar per month was levied on the sugars, which consumed the greater part of their value, though the agents of the master had been informed by letter that storage could be procured at 25 cents, and the report of a master shows that but 40 cents should be allowed.

The case then stands thus: The master having property in his possession ten times greater than his own demand, has so dealt with it as to render it almost valueless to the owner. He has acted on the assumption that his lien gave him the right to sell, and made two sales against the protest of the owner.

Whether by the law he had this right of sale need not, therefore, be inquired into. He clearly had the right to apply to the court for the purpose of enforcing his lien for the freight. But when is this to be done? Has the master the right to detain the goods for an indefinite time? We assert that when he assumes to keep possession and control, he must act as a prudent administrator, and in good faith to the owner of the goods. He could have sold the goods as soon as the parties refused to pay the freight, or procured an order of the court, if he preferred it, and thus secured his own rights and protected the interests of the owner. If he had applied to the court, the property would have been delivered to the claimant upon a proper stipulation, preserving the rights of the master. If the consignee had been dead or absent, the case might be more palpable, but the rules of law applicable would be the same. The reasons urged on this point by the district judge on decreeing for the libellants should be conclusive of the rights of the parties in this litigation.

No opposite counsel appeared.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Eddy


text: Talk:The Eddy

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

title: Talk:The Eddy


text:
The Eddy/Opinion of the Court

Substance of the allegations of the libel setting forth the cause of action was, that certain merchants at New Orleans, on the 25th day of March, 1854, shipped on board the schooner Mary Eddy, then lying in that port, one hundred and two hogsheads of sugars, for which the master gave a bill of lading to the shippers, and that he contracted to transport the sugars from that port to the port of Charleston, and there to deliver the same to the appellants, in good order and condition, saving and excepting only the dangers and accidents of the seas and navigation; and the libellants averred that the vessel departed on the voyage, and that the master had neglected and refused to deliver the sugars.

Answer of the respondents admitted the reception of the sugars, the contract of affreightment as set forth in the bill of lading, and the arrival of the schooner at the port of destination with the sugars on board, in good order and condition.

Principal defence set up in the answer was that the contract to deliver the sugars was subject to the lien of the respondents for the payment of the freight, as stipulated in the bill of lading; and they averred that the vessel proceeded on her voyage, and arrived safely at the port of destination with the sugars on board, in good order and condition, and that the master gave immediate notice of those facts to the consignees, and offered to deliver the sugars to them, according to the bill of lading, but they utterly neglected and refused to pay the freight.

First appeal of the libellants to this court was dismissed, it appearing that neither this court nor the Circuit Court had jurisdiction of the case, as no final decree had been entered in the District Court where the libel was filed. Such being the fact, this court dismissed the appeal, and remanded the cause to the District Court, in the same condition in which it was before the appeal was taken to the Circuit Court, in order that the District Court might proceed with the case to a final decree. Pursuant to the mandate of this court, the District Court completed the hearing, and still being of the opinion that the claim of the libellants was well founded, entered a final decree in their favor; but the Circuit Court reversed the decree, on the appeal of the respondents, and the libellants appealed to this court.

1. The record shows that the controversy in this case, in its origin, grew out of a difference of opinion between the parties as to the respective rights and duties of the master of the schooner, as a carrier by water, and the shipper of the cargo, in respect to the delivery of the goods, or rather of the shipowners and the consignees and owners of the cargo, under the usual bill of lading stipulating for the delivery of the goods upon payment of the freight. Appellants, as the consignees and owners of the cargo, conceded that the owners of the schooner had a lien for the freight, but insisted that they, as consignees and owners of the cargo, had a right to inspect the sugars before paying the freight, as stipulated in the bill of lading, and that it was the duty of the master, under the usages of the port, to discharge the entire consignment before exacting the payment of freight, and to allow them, as the consignees, to take possession of the sugars, and transport the same to their store, in order that they might be enabled satisfactorily to make such examination and inspection.

Acting for the owners of the vessel, the master admitted that it was his duty to discharge the entire consignment, and to permit the same to be inspected by the consignees, but he denied that it was his duty to allow the sugars to be transported to the warehouse of the consignees until the freight was paid. On the contrary, he insisted that it was his right to retain possession of the sugars as the means of preserving the lien of the vessel, to which the sugars were subject for the payment of the freight. When the agent of the libellants first went to the vessel, shortly after her arrival, and asked for the sugars, he was duly notified by the master that the lien of the vessel for the payment of the freight would not be waived. Subsequently, one of the libellants went on board and had some conversation with the master in respect to the payment of the freight and the delivery of the consignment. They came to an understanding that all the sugars which were in good order should be sent to the store of the libellants, but that the freight on all so sent should be paid on the wharf.

The whole consignment consisted of one hundred and two hogsheads of sugars and twenty-one barrels of syrup. Libellants' clerk sent the twenty-one barrels of syrup and three hogsheads of the sugar to their store, under that arrangement, but the libellants refused to furnish the money to pay the freight, and the master declined to permit any more to be sent, except upon payment of the freight, as it had been understood in that arrangement. Finding that they were unable to agree, the master notified the libellants that he should exact the payment of freight on the wharf; and they, in reply, notified the master that they should hold him responsible for any injury the sugars should receive on the wharf. Correspondence took place between the parties in respect to the delivery of the sugars and the payment of the freight, which is exhibited in the record, together with the testimony of various witnesses who were examined upon the subject.

The vessel arrived at Charleston on the last day of March, 1854, and the cargo was discharged on the third and fourth days of April following. Notice was given to the libellants early in the afternoon of the latter day, to the effect that the consignment was ready to be delivered in good order and condition, on payment of freight, but that if they refused to pay freight, as stipulated in the bill of lading, the sugars would remain on the wharf until sunset, and would then be stored at their expense and risk. Their response was that they would give security for the freight to be paid, in accordance with the usages of the port, upon the delivery of the consignment. They also objected to the notice as too late in the day to enable them to transport the sugars from the wharf and store them in their warehouse.

Throughout the correspondence it is obvious that the libellants denied all obligation to pay the freight until the entire consignment was discharged and delivered without qualification, so that they could store the goods and inspect them in their own warehouse. Refusing to accede to those terms the master discharged the sugars, and after waiting a reasonable time stored them, and notified the libellants that they were stored at their risk and cost, to be delivered to them upon payment of freight and charges. Proofs also show that the libellants examined the sugars the next day-both those on the wharf and those in store but no demand was made nor was any freight tendered.

2. Undoubtedly the shipowner has a lien upon the cargo for the freight, and consequently may retain the goods after the arrival of the ship at the port of destination until the payment is made, unless there is some stipulation in the charter-party or bill of lading inconsistent with such right to retention and which displaces the lien. Text-writers usually state the rule as follows: Le batel est oblige a la marchandise et la marchandise au batel.

Unquestionably the general rule of law is well expressed in that maxim, but it is subject to an important exception as applied to the cargo, that the lien may be displaced by an inconsistent and irreconcilable provision in the charter-party or hill of lading, making it the duty of the master to deliver the goods unconditionally before the consignee is required to pay the freight. Saving that exception, the rule is universal that the ship and freight are bound to the merchandise and the merchandise to the ship. Shipowner contracts for the safe custody, due transport, and right delivery of the merchandise, and the shipper, consignee, or owner of the cargo contracts to pay the freight and charges. These are reciprocal duties, and the law creates reciprocal liens for their enforcement, but the lien of the shipowner may be displaced, as before explained, or it may be waived.

Such a lien-that is, the lien of the shipowner-is not 'the privileged claim' of the civil law, but it arises merely from the right of the shipowner to retain the possession of the goods until the freight is paid, and therefore it is lost by an unconditional delivery of the goods to the consignee. Subject to this explanation, the maxim that the ship is bound to the merchandise and the merchandise to the ship for the performance of all the obligations created by the contract of affreightment, is the settled rule in all the Federal courts.

3. Contracts of affreightment, notwithstanding it is held that the lien of the shipowner is nothing more than the right to withhold the goods, and is inseparably associated with his possession, are regarded by the courts of the United States as maritime contracts over which the courts of admiralty have jurisdiction, and consequently that either party in a proper case may enforce his lien by a proceeding in rem in the District Court. Where the ship is in fault, the usual remedy of the consignee is by the proceeding in rem; but where the shipper, owner, or consignee of the cargo is in fault, the shipowner usually finds an adequate remedy by retaining the goods until the freight and charges are paid. His right to do so is beyond doubt, but he cannot detain the goods on board the ship until the freight is paid, as the consignee or owner of the cargo would then have no opportunity of examining their condition. Practice in England is to send such goods as are not required to be landed at any particular dock to a public wharf, and order the wharfinger not to part with them till the freight and other charges are paid; and it is held that in such cases the lien of the master continues, as the goods remain in his constructive possession.

4. Delivery on the wharf in the case of goods transported by ships is sufficient under our law, if due notice be given to the consignees and the different consignments be properly separated, so as to be open to inspection and conveniently accessible to their respective owners. Where the contract is to carry by water from port to port an actual delivery of the goods into the possession of the owner or consignee, or at his warehouse, is not required in order to discharge the carrier from his liability. He may deliver them on the wharf; but to constitute a valid delivery there the master should give due and reasonable notice to the consignee, so as to afford him a fair opportunity to remove the goods, or put them under proper care and custody. When the goods, after being so discharged and the different consignments properly separated, are not accepted by the consignee or owner of the cargo, the carrier should not leave them exposed on the wharf, but should store them in a place of safety, notifying the consignee or owner that they are so stored, subject to the lien of the ship for the freight and charges, and when he has done so he is no longer liable on his contract of affreightment.

5. Parties may agree that the goods shall be deposited in the warehouse of the consignee or or owner, and that the transfer and deposit shall not be regarded as a waiver of the lien, and where they so agree the courts of admiralty will uphold the agreement and support the lien; but there was no agreement in this case. The appellants refused to pay the freight, and the master declined to part with the possession of the goods. He discharged the cargo upon the wharf, gave due notice to the consignees, and they refused to pay the freight, claiming that they had a right, by the usages of the port, to remove the goods to their store for inspection, without paying freight. They examined witnesses upon that subject, but it is sufficient to say that they failed to prove any such usage. Relying on proof of such a usage, they refused to accept the goods, and the master stored them in a place of safety and gave due notice to the libellants.

6. Misinterpreting the mandate of this court, the district judge came to the conclusion that the interlocutory decree entered in the cause before the former appeal could be supported by proof of the subsequent misconduct of the bailee of the goods, who sold certain portions of them to pay the charges for storage. All we think it necessary to say upon the subject is that none of those questions are involved in the pleadings in this record. Present libel was in rem against the vessel for the non-delivery of the consignment of the libellants. Respondents appeared and set up the defence that the goods were subject to the lien of the vessel for the freight, and that the libellants, without just cause or excuse, refused to pay the freight, and they fully proved their defence. Having proved their defence, they were entitled to a decree in their favor, wholly irrespective of any subsequent misconduct of the bailee of the goods, who was not before the court.

AFFIRMED WITH COSTS.

title: The Eddy/Opinion of the Court


text: Talk:The Eddy/Opinion of the Court

title: Talk:The Eddy/Opinion of the Court


text: Hansbrough v. Peck

title: Hansbrough v. Peck


text: Talk:Hansbrough v. Peck

title: Talk:Hansbrough v. Peck


text:
Hansbrough v. Peck/Opinion of the Court

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

In January, 1857, Hansbrough and Hardin agreed with one Peck to buy certain lots in Chicago for $134,000. The purchase-money was made payable in nine instalments, each being for $4300, except the last, payable April 28th, 1861, which was for $90,000. The lots had on them at the time two wooden houses and a barn.

By the contract it was agreed 'that the prompt performance of the covenants, and payment of the money shall be a condition precedent, and that TIME IS OF THE ESSENCE OF THE CONDITION.'

And also 'that in case default shall be made in the payment of any or either of said notes, or any part thereof, at the time or any of the times above specified for the payment thereof, for thirty days thereafter, the agreement, and all the preceding provisions thereof, shall be null and void, and no longer binding, at the option of said vendor. And all the payments which shall have been made, absolutely and forever forfeited to said vendor, or at his election the covenants and liability of the purchasers shall continue and remain obligatory.'

And also 'that in case of default in the payments promptly on the days named by the purchasers, that it is also the right of said vendor to declare the contract ended, and prior payments forfeited, and to consider all parties in the possession of the premises at the time of such default, ''tenants at will of said vendor at a rent equal to ten per cent. on the whole amount of said purchase-money''. And the vendor from that time is declared to be restored, with the possession and right of possession in the premises, to the exercise of all powers, rights, and remedies provided by law or equity to collect such rent, or remove such tenants, the same as if the relation of landlord and tenant were created by an original, absolute lease for that purpose on a special rent payable quarterly on a tenure at will, and that the said tenants will not commit or suffer any waste or damage to said premises or the appurtenances; but, on the termination of such tenancy, will deliver the premises in as good order and repair as they were at the commencement of such tenancy.'

By a statute of Illinois --

'The rate of interest upon the loan or forbearance of any money, goods, or things in action, shall continue to be six dollars upon one hundred dollars for one year.

'Any person who, for any such loan, discount, or forbearance, shall pay or deliver any greater sum or value than is above allowed to be received, may recover in an action against the person who shall have taken or received the same threefold the amount of money so paid, or value delivered above the rate aforesaid, either by an action of debt in any court having jurisdiction thereof, or by bill in chancery in the Circuit Court, which court is hereby authorized to try the same: PROVIDED, said action shall be brought or bill filed within two years from when the right thereto accrued.'

Under this contract, and in the state of the law above stated, the purchasers went into possession, and laid out $18,000 in improving the property by building on it. They paid $10,000, also, on account of the notes, and about two years' interest. After erecting these improvements, and paying the two years' interest, the purchasers becoming embarrassed, or dissatisified with their contract, were desirous of surrendering it, but where persuaded by the vendor to remain, and they paid the interest for another year, 1859, making in all about $28,000 of interest paid. The last payment of interest was made 31st January, 1860. After that, no further payments were made, and on the 1st April, 1861, the vendor filed a bill in chancery in one of the State courts to prevent the threatened removal of the buildings from the premises, and to get possession of the property. On the 23d August, 1862, a decree was entered to this effect, and the vendor put into the possession. The decree restrained the purchasers from removing the buildings, declaring them to be fixtures; and for the default in the payment of the purchase-money the plaintiff, the vendor, was put in possession, and all the tenants were required to attorn to him. It declared further, that he was entitled to the estate and interest in the lots, the same as before the contract. And to remove any doubt in the title by reason of the contract and the default in the payments, it declared that the premises should be discharged from any incumbrance or charge in respect to the contract of sale; and that the purchasers, or any one claiming through them, should be forever debarred from having any estate, or interest, or right of possession in the premises, having lost the same by wilful default; and that the articles of agreement were to be held, in relation to the title and possession, as of no effect and void, as it respected the vendor and all claiming under or through him.

In this state of facts, the purchasers filed, August 23, 1862, a bill in the Circuit Court for the Northern District of Illinois, to recover back the moneys paid upon the contract, and also for the value of improvements made on the premises; the ground of the bill being that the contract had been rescinded by the defendant.

In regard to the matter before mentioned of the purchasers' having been desirous of surrendering, and of being persuaded by the vendor to stay, the bill alleged:'That the contract became and was so intolerably oppressive, that in November, 1859, they proposed a relinquishment of the same unless it should be modified or made less rigorous and exacting. That the vendor thereupon proposed to them that if they would not abandon the same, but would pay certain taxes, assessments, and charges, and interest then accrued, the whole amounting to ten thousand dollars, within sixty days from the first day of December, 1859, he would thereafter so accommodate and indulge them that they could carry on said contract, and to this end he would, until there should be a revival of trade and business in Chicago, take the net income from the property over and above taxes and insurance, in lieu of interest on the purchase-money, until such revival of trade and business. That your orators accepted said proposition, and in accordance with his request, in order to comply with the proposition, sent an agent from Kentucky to reside in Chicago aforesaid, to take charge of the property and collect and get in the rents and pay the same to said vendor, less the taxes and insurance. And also your orators, on or about the 31st day of January, A. D. 1860, paid said taxes, assessments, and other charges, and accrued interest, the whole amounting to ten vendor the net income from the in compliance with his said proposition, and thereafter were ready and willing, and, from time to time, offered to pay the vendor the net income from the premises after deducting the taxes and insurance as aforesaid; but he declined to abide by his said proposition, and thereafter continued to enforce the said contract of January 29th, 1857, and all its provisions, with the most exacting rigor, notwithstanding there was no considerable increase of income from the property, nor a revival of trade and business in Chicago.'

Upon this case, which in substance was the one set forth, the defendant in the case, the original vendor, demurred; and the court below dismissed the bill.

Mr. Thomas Hoyne, for the appellee and in support of the decree:

I. The bill is not maintainable as a bill to recover back money paid or laid out in part performance of a contract, because the appellants are themselves in default, and refused to perform their contract with the appellee.

II. The court will not entertain jurisdiction of the bill, because it seeks compensation in the nature of damages only.

III. The bill shows, on its face, that the same matters have before been litigated between the same parties in a court of competent jurisdiction, and that a former decree was rendered thereon forever determining the rights of the parties, and in which the appellants might have litigated, if they did not, and have had decided all matters put in controversy by them in this cause.

IV. Irrespective of all other questions in this cause, the appellants being in default, and not only so, but refusing to perform the contract, in fact repudiating its terms, without any pretence of fraud, mistake, or accident, to excuse them, they are entitled to no relief whatever.

I. As to the return of the money, more than $28,000, paid by the appellants to the vendor.

That the vendor should be allowed to keep this large sum, and the land too, is revolting to conscience.

The equity of the appellants rests upon the definite rule of law and justice, which prescribes that the parties, upon the rescission of a contract, shall be replaced in statu quo ante.

The vendor seeks to escape from this legal and equitable rule by interposing that monstrous provision of the contract which authorized him, upon declaring a forfeiture of the agreement, 'to retain the money previously paid.'

To this objection we answer—

1. The provision for the retention of the payments made previously to the forfeiture is strictly a penalty. In fact, even if the provision in question had specified that the money should be retained as liquidated damages, it would be, in contemplation of law, a penalty, and nothing more.

The rule of law and equity has ever been compensation, and not forfeiture. And parties cannot be permitted to annul a principle of such eternal justice by a mere stroke of the pen.

That equity will relieve against penalties is an axiom as old as the Court of Chancery. And it exists now in the State from which this appeal comes. In Glover v. Fisher, the Supreme Court of Illinois says:

'It would be unconscionable to let the defendant keep the land as well as the money already advanced.'

2. The entire contract has been cancelled-first, by the election of the appellee; and secondly, by a judicial sentence, passed at his own instance.

Therefore, the cannot plead an agreement as a defence, which he himself has caused to be declared void. He cannot treat the contract as dead, to the prejudice of the appellants, and yet as alive, to his own advantage.

Hence, as the case stands, the vendor received this money upon a consideration which has failed, and he must restore it. The law of every civilized nation would compel him to do so.

II. As to the money which the vendor obtained from the appellants by promises of forbearance.

He received the money, in fact, under a new agreement, resting in parol; one, therefore, void by the statute of frauds. And hence, according to all the authorities, he must refund.

III. As to the claim of the appellants to recover the value of the improvements made by them, while in legal possession of the premises.

The appellants may be considered as bona fide purchasers, having made valuable improvements, while in lawful occupancy of the land; and as such, they have an equitable right to compensation for the additional value conferred upon the premises by their money and labor, the rents and profits being at the same time deducted.

But the claim stands on a stronger ground than that of an ordinary bona fide purchaser. For here, of course, the improvements were erected with the appellee's knowledge and consent, and under an agreement which he himself has since rescinded. Hence, according to all the cases, since he has chosen to rescind the contract, he must restore whatever benefit he received under it.

Nor does the agreement itself contain any provision, that upon forfeiture, the appellee may keep the improvements without payment of their value.

The decree of the State court merely adjudged that the improvements had become annexed to the freehold as 'fixtures,' and therefore could not be removed. It said nothing as to the right of the appellants to claim the value of the improvements. That question was not in issue; and hence, could not be determined by the decree.

As to the claim of payment for the improvements, it is clear that no remedy could be had at law.

It is obvious, on its face, that the limitation imposed by the statute of Illinois, applies to suits for the threefold penalty, and to nothing else. But we are not seeking to recover the penalty. We seek merely the money wrongfully exacted.

I. The doctrine that courts can relieve against penalties or forfeitures does not apply in this case. Here there is nothing to be relieved against. The rights of the parties are fixed and determined by law; and no compensation in damages can be made by this court now to the appellee, in lieu of benefits and rights which he has surrendered by releasing the appellants on their liability under the contract, and relinquishing the advantages of his sale, upon finding that the appellants were obstinate in their default and refusal to perform the contract and pay up the purchase-money.

II. As to the alleged promise to grant further delay or forbearance. Confessedly the promise was never reduced to any writing. The money was justly due and in arrear at the time it was paid. It had no new consideration; it was based solely upon the obligations of the contract. Surely no citation of authority before this tribunal can be necessary to show that a promise so made was never of any binding force or effect.

III. As to usury; the question being raised. It is not alleged that the contract was a contrivance to cover the usury on any loan or discount of money. Besides which, the statutes of Illinois provide that any action brought by bill in chancery to recover back more than the lawful amount of interest paid on any loan or forbearance of money, shall be brought or filed within two years from the time when the right thereto accrued.

If no other objection were raised in bar of the claim made to recover back the usurious interest, the lapse of time of itself is sufficient.

Mr. Justice NELSON delivered the opinion of the court.

It will be seen from the facts in this case that the plaintiffs were in default on account of the non-payment of the interest for more than a year, and also that the principal fell due a few days after the filing of the bill in chancery in the State court, on account of this default in the payments. The contract was a very stringent one. Time was, in terms, made the essence of it, in respect to the payments; and, further, in case of a default in any one payment, for thirty days, the agreement was to be null and void, and no longer binding, at the option of the vendor, and all payments that had been made were to be forfeited to him; and also in case of default in any of the payments it was agreed that the contract, at the election of the vendor, was to be at an end, and the purchasers deemed to be in possession as tenants at will, liable for a rent equal to the amount of interest of the purchase-money.

The decree in chancery in the State court is relied on as having rescinded the contract at the instance of the defendant, by reason of which the plaintiffs have become entitled to recover back the purchase-money paid, together with the value of the improvements. The position is, that there is no longer a subsisting contract, as an end has been put to it by the vendor, and he has in consequence resumed the possession, and claims to hold the estate the same as if no contract had ever existed, and that in such case the purchaser, upon settled principles of law and equity, is at liberty to recover back the consideration paid and the value of the improvements. But the difficulty is, that the vendor has only availed himself of a provision of the contract, which entitled him to proceed in a court of chancery, by reason of the default of the purchaser in making his payments, to put an end to it and be restored to the possession. It is a proceeding in affirmance, not in rescission of it, by enforcing a remedy expressly reversed in it. Indeed, without such clause or reservation, the remedy would have been equally available to him. It is a right growing out of the default of the purchaser, as the law will not permit him both to withhold the purchase-money and keep possession and enjoy the rents and profits of the estate; nor will it subject the vendor to the return of the purchase-money if he is obliged to go into a court of equity to be restored to the possession.

In case of a default in the payments there are several remedies open to the vendor. He may sue on the contract and recover judgment for the purchase-money, and take out execution against the property of the defendant, and among other property, the lands sold; or he may bring ejectment, and recover back the possession; but in that case, the purchaser, by going into a court of equity within a reasonable time and offering payment of the purchase-money, together with costs, is entitled to a performance of the contract; or the vendor may go in the first instance into a court of equity, as in the present case, and call on the purchaser to come forward and pay the money due, or be forever thereafter foreclosed from setting up any claim against the estate. In these contracts for the sale of real estate the vendor holds the legal title as a security for the payment of the purchase-money, and in case of a persistent default, his better remedy, and under some circumstances his only safe remedy, is to institute proceedings in the proper court to foreclose the equity of the purchaser where partial payments or valuable improvements have been made. The court will usually give him a day, if he desires it, to raise the money, longer or shorter, depending on the particular circumstances of the case, and to perform his part of the agreement.

This mode of selling real estate in the United States is a very common and favorite one, and the principles governing the contract, both in law and equity, are more fully and perfectly settled than in England or any other country. The books of reports are full of cases arising out of it, and every phase of the litigation repeatedly considered and adjudged. And no rule in respect to the contract is better settled than this: That the party who has advanced money, or done an act in part-performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfil all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done.

The same doctrine has been repeatedly applied by the courts of Illinois, the State in which this case arose.

This principle would of itself have defeated the plaintiffs in this suit, independently of the decree foreclosing their equity in the contract.

It appears in the case that the parties agreed upon the rate of ten per cent. interest for the forbearance of the purchase-money unpaid, when, at the time, as is admitted, it was only six per centum. But this law did not invalidate the contract. It authorized the party to recover of the party taking usury threefold the amount above the legal rate, at any time within two years after the right of action accrued. This bill was filed the 23d August, 1862. The last payment of interest was made 31st January, 1860. More than two years, therefore, had elapsed before the suit was brought.

We should add, it is not admitted by the defendant that this arrangement had the effect to make the contract usurious; and would not, according to the case of Beete v. Bidgood, if the excess of interest stipulated for was in fact a part of the purchase-money.

After the default of the purchasers, and when they were disposed to surrender the contract, the vendor proposed to them, if they would abandon the idea, and pay up the taxes in arrears and interest that had accrued, he would indulge them, and to that end, and until a revival of business in Chicago, he would be satisfied with the net income from the property over and above the taxes and insurance; and it is averred that they agreed to the propositions and paid the taxes and interest, but that the vendor declined to carry out the agreement and enforced the contract, though there had not been any considerable increase of income from the property or revival of trade and business in Chicago. This provisional arrangement is very loosely stated in the bill, but is, of course, admitted by the demurrer. It admits the revival of business, to some extent, before the enforcement of the contract. There is great difficulty, however, in determining the extent of increase contemplated by the arrangement from the statement in the bill. It was entered into in November, 1859, and this suit was not instituted till August, 1862, some two years and nine months afterwards.

But the true answer to this part of the case is, that the arrangement was not in writing, nor any consideration passing between the parties that could give validity to it. The promise by the purchasers was but in affirmation of what they were bound to perform by their written agreement, and all that was done was but in fulfilment of it.

We have thus gone carefully over the case as presented, and considered every ground set up on the part of the plaintiffs for the relief prayed for; but, with every disposition to temper the sternness of the law as applicable to them, we are compelled to say that, according to the settled principles both of law and equity, a case for relief has not been established.

The truth of the case is, that these plaintiffs improvidently entered into a purchase beyond their means, and, doubtless, relied very much upon the rise of the value of the estate, and of the income, to meet the payments and expenditures laid out upon it. Their anticipations failed them, and a heavy debt was the consequence, beyond their ability to meet. Of the $93,000 purchase-money, they have paid only $10,000. Of interest, some $28,000. They expended for improvements $18,000. There still remained due against them $83,000 purchase-money and over $20,000 interest, at the time the vendor went into possession. The plaintiffs themselves had been in the possession and enjoyment of the premises for a period exceeding that for which the interest on the purchase-money had been paid, which, at least, must be regarded as an equivalent for the money thus paid.

DECREE AFFIRMED.

title: Hansbrough v. Peck/Opinion of the Court


text: Talk:Hansbrough v. Peck/Opinion of the Court


text:
Insurance Company v. Chase

ERROR to the Circuit Court for the District of Maine.

This controversy arose on a policy of insurance. The underwriter admitted the loss by fire, but denied the obligation to pay, chiefly because the party insured, had not an insurable interest in the property which was destroyed.

The case was this: William Chase, Sewall Chase, J. F. Day, John Yeaton, and J. W. Munger were the trustees of the Congregational Church on Congress Street, in Portland, and held the legal title to it, in trust for the society. Munger, one of the trustees, was also the agent at Portland of two insurance companies created by the laws of Massachusetts,-the Howard and the Springfield. On the 25th of November, 1859, he took fire risks for each company to the amount of $5000 on the church property-the party assured in the Springfield Company being described in the policy as 'The proprietors of the Union Church, Portland, Maine,' and in the Howard Company as 'William Chase, of Portland, Maine, payable, in case of loss, to Grenville M. Chase.' Each policy contained a statement of the several sums for which the property was insured in the different companies.

Prior to these contracts of insurance, the Continental Insurance Company of New York had insured the church for an equal amount, in the name of the proprietors; but the policy, although dated in 1857, recites the risks taken by the Springfield and Howard Companies in 1859. The reasonable explanation of this, being, that when the policy was afterwards renewed, these additional risks were incorporated into it.

William Chase, the assured in the Howard policy, was the treasurer of the parish for several years, and paid the premiums on the policies and the renewals of them. The premiums on the Springfield and Continental policies were charged to the parish; the Howard premiums were not, but were paid out of his private means, on account of the parish, which was done with the assent of the trustees. The society was indebted to William Chase in the sum of $15,000, but not to G. M. Chase. William Chase was, however, indebted to G. M. Chase, and obtained the Howard policy to secure him.

All this appeared by William Chase's own testimony, he having been called by the defendants in the case, and the only witness in it.

The church was badly damaged by fire on the 15th of March, 1862, and the Springfield and Continental Companies, recognizing their liability, paid to the trustees two-thirds of the loss sustained by the fire. The Howard Company declining to pay, were sued by G. M. Chase, the payee in the policy, for the remaining third.

The declaration set forth that 'William Chase was the owner and possessor in trust of the Union Congregational brick and slated Church,' &c., and that 'said Insurance Company in consideration of a premium in money then and there paid to them therefore by said William, made a policy of insurance, and thereby agreed to and with said William to insure upon said property,' &c.

Under instructions of the court a verdict and judgment were given for the plaintiffs, and the case was now brought here on error.

Messrs. Fessenden and Butler, for the plaintiff in error:

I. There is a fatal variance between the allegation of interest in the declaration and the proof.

The allegation is, that William Chase was 'the owner and possessor in trust.'

The proof offered was, that William Chase was one of five trustees.

An averment of an entire interest is not supported by proof of a joint interest.

The legal title to the church was vested in five trustees, and to give validity to their acts, it was necessary that they should act jointly in what concerned the joint property.

II. Regarding the insurance as 'for the parish,' the plaintiff is limited by the proof of the interest of William Chase, as trustee-viz.: one-fifth, as he was only one of five trustees.

1. Because he had no other interest.

2. Because he does not aver that anything more than his individual interest was insured, and the policy contains no formal words-as 'for whom it may concern.'

III. If the preceding point is sound, then, as there were two other policies on the same property to an equal amount each, for the benefit of the same parties, the plaintiff in this action can recover only one-fifth of one-third, on the same principle.

IV. The proof shows that William Chase, having no other interest than as trustee, in fact insured the property for his individual benefit, and not 'for the parish.'

Having had no other interest than as trustee, and having insured the property in terms for his individual benefit, he could not recover.

Such insurance is void, either with or without notice to insurers.

1. Because insurance is simply a contract of indemnity, and the insured had no personal interest for the loss of which he could be indemnified.

2. Because if without notice to insurers, it is a fraud upon them. One of the first elements, entering into the question of risk, is the interest of the assured to protect the property. If he has no pecuniary interest in the trust property, as in case of a mortgage, it is for his interest that a loss should occur, for he is thereby benefited. Had instructions to this effect been given, the jury would have found a different and proper verdict.

3. Whether with or without notice, such insurance is void, because against public policy, tending to create an interest in the destruction of the property, and adverse to the interest of the cestui que trust.

Mr. John Rand, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Insurance Company v. Chase


text: Talk:Insurance Company v. Chase

title: Talk:Insurance Company v. Chase


text:
Insurance Company v. Chase/Opinion of the Court

A recovery in this case is strenuously resisted, because it is said the individual interest of William Chase was insured, and not his interest as a trustee; and, as his only interest was that of a trustee, it follows that the contract of insurance was a gaming one, and void from considerations of public policy.

A contract of insurance, is intended to indemnify one who is insured against an uncertain event, which, if it occurs, will cause him loss or damage. The assured must therefore have an interest in the property insured; otherwise, there is a temptation to destroy it, which sound policy condemns.

If, then, the Howard Company did not insure the interest of William Chase as a trustee (it is conceded he had no other), the policy is void, although he was a creditor of the church, paid a fair premium for the policy, and disclosed everything to the underwriter. But the recovery in this case, is based on the ground that William Chase had an insurable interest as trustee, and insured the property for the benefit of the society. The declaration expressly avers that William Chase, being the owner and possessor in trust of the Union Congregational Church, for a premium paid in money, effected an insurance on the property in the Howard Insurance Company. If this were true, and the proofs sustained it, the verdict and judgment of the Circuit Court cannot be disturbed. It is unnecessary in this case to discuss the general law of insurance with reference to what interests are, or are not insurable. The courts of this country, as well as England, are well disposed to maintain policies, where it is clear that the party assured had an interest which would be injured, in the event that the peril insured against should happen.

That a trustee having no personal interest in the property may procure an insurance on it, is a doctrine too well settled to need a citation of authorities to confirm it. As early as 1802, the judges of the Exchequer Chamber, in the case of Lucena v. Craufurd, held, that an agent, trustee, or consignee could insure, and that it was not necessary that the assured should have a beneficial interest in the property insured, and the rule established by this case, has ever since been followed by the courts of this country and England.

A trustee, therefore, having the right, is justified in insuring the property, even to its full value, although there is no obligation on him, in the absence of express directions, to insure at all.

But it is argued, that the legal title to the Congregational Church was vested in five trustees, and that to give validity to their acts, they must act jointly in whatever they do for the benefit of the property.

It is true, that in the administration of the trust, where there is more than one trustee, all must concur, but the entire body can direct one of their number to transact business, which it may be inconvenient for the others to perform, and the acts of the one thus authorized, are the acts of all, and binding on all. The trustee thus acting is to be considered the agent of all the trustees, and not as an individual trustee. If, within the scope of his agency, he procures an insurance, it is for the other trustees, as well as himself. If he does it without authority, still it is a valid contract, which the underwriter cannot dispute, if his co-trustees subsequently ratify it. In fact, so liberal is the rule on this subject, that where a part-owner of property effects an insurance for himself and others, without previous authority, the act is sufficiently ratified, where suit is brought on the policy in their names.

It is contended that the contract of insurance, being in the name of William Chase, could only cover his individual interest, or, at the furthest, but the fractional part of the interest which he had as trustee. But the law of insurance is otherwise; for, as any one having any legal interest in property can insure it as his own, and in his own name, without specifying the nature of his interest, it follows that if William Chase insured the church with the assent of his cotrustees, for the benefit of the cestui que trust, that the insurance company cannot complain, that the character of the interest was not incorporated in the policy, unless, if described, it would have had an influence on them not to underwrite at all, or not to underwrite except at a higher premium than the one actually paid by the insurer. It has been held in some cases, that the party applying for insurance need not disclose his interest, unless asked by the insurer.

Whether the disclosure of the interest was material to the risk incurred, and would have enhanced the premium, is always a question of fact for the jury.

Applying these rules and principles of mercantile law, to the facts of this case (for evidence is properly receivable aliunde the policy, to explain the character of the interest insured), is it not apparent, that the defences interposed cannot avail the insurance company? Could Munger, who issued the policy, and was a co-trustee with William Chase, have been in ignorance, that the property was insured for the benefit of the parish? If so, why was he not called to contradict William Chase, who testified that although he paid the premiums on the original policy, and for each renewal, out of his private funds, yet it was done for the parish and with the assent of the trustees.

If this statement was untrue, and Munger did not authorize the payments of the premium on account of the parish, it was surely his duty to the company he represented to have denied it. Not having done so, the inference is irresistible that William Chase told the truth. If he did, there is an end of the controversy, for an assent on the part of the trustees to the payment of the premiums, is an assent to the procurement of the policy of insurance. Besides, this authority was a continuing one, for the policy was several times renewed, and each time for the benefit of the parish. The jury had no right to disregard the evidence of William Chase, for he was called by the defence, and was the only witness sworn on the trial. And why was the sum for which each policy was given, inserted in the other, unless to show that it was one and the same transaction? If the insurance to William Chase was not a part of the general plan of the trustees to insure the church property, it is not easy to see why the fact of such insurance is recited in the policies issued by the other companies. On what ground, then, can the Howard Company resist the payment of this demand? William Chase swears he acted for the parish with the assent of the trustees; confirmatory evidence is furnished by the policies of insurance, and there is not a particle of countervailing testimony. Why the trustees, in insuring the church for fifteen thousand dollars, allowed one policy to issue in the name of William Chase, payable, in case of loss, to G. M. Chase, is not disclosed by the record; but it is a fair inference, from the evidence, that it was designed, if the peril insured against should occur, to appropriate the money to the use of William Chase, and thus discharge in part the indebtedness of the society to him; and that William Chase, under the direction of the trustees, chose to have the money paid to his creditor, furnishes no defence to the insurer.

As we have seen, William Chase, with the assent of the trustees, could insure the trust title in his own name, and whether the party appointed by him to receive the money, after having recovered it, can retain it to his own use, or must pay it to the trustees, is wholly immaterial to the insurer. This depends on the private arrangement between the trustees, William Chase and Grenville M. Chase, with which the Howard Company has no concern.

If the trust property was insured, and the benefit of the insurance goes to the society, and there was no concealment or unfair dealing which could avoid the risk, then the underwriter is concluded from any further inquiry. That there could have been no undue concealment, is very evident, because Munger, the agent of the underwriter, was a co-trustee with William Chase, and had equal knowledge with him of the whole transaction.

The foregoing views dispose of this case, and it is unnecessary to refer in detail to the charge of the Circuit Court, because it was in conformity to them.

The instructions asked by the insurance company were properly refused. A portion of them were right in the abstract, but would have misled the jury, there being no evidence in the case applicable to them. The rest were inconsistent with the law of the case as given in this opinion.

AFFIRMED WITH COSTS.

Mr. Justice MILLER dissented.


text: Talk:Insurance Company v. Chase/Opinion of the Court


text: The Sir William Peel

title: The Sir William Peel


text: Talk:The Sir William Peel

title: Talk:The Sir William Peel