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Connecticut Mutual Life Insurance Company v. Schwenk/Opinion of the Court

The issue, out of which arose both the questions brought here by this case for determination, was founded on a plea that Dr. McDonough, the person whose life had been insured, was older than he had been represented to be in the application for the policy. In that application, made March 25, 1867, his age was stated to be sixty-two at his next birthday. Accompanying the proofs of death furnished to the company by the plaintiffs below was an affidavit of one Thomas Nolan, that the death occurred on the 12th of April, 1869, and that the deceased was between sixty-six and seventy years of age at that time, according to the best judgment of the affiant. To explain the discrepancy between the statement of the affidavit and that made in the application, the plaintiffs offered to prove that the age of the deceased was different from that stated in the affidavit; and, for this purpose, they offered to prove by Nolan himself that he was mistaken, and that he had no knowledge upon the ubject. This evidence the court received, notwithstanding an objection by the defendants (the ground of the objection being that no notice had been given to them prior to the trial that such evidence would be offered); and the admission of the evidence is the first error assigned.

In considering the ruling of the court, it is first to be observed that nothing in the policy required that proof of the death of the person whose life was insured should be accompanied by proof of his age at the time of his death. There was, it is true, a memorandum, indorsed on and folded in the policy, that a certificate would be required from some intimate friend of the age of the person insured at the time of his death; but the memorandum was no part of the contract, and it was not shown to either the court, the jury, or the counsel, before the verdict was rendered. Nolan's affidavit, therefore, was no necessary part of the proofs of death, and hence it was immaterial. Yet, having been furnished by the plaintiffs to the defendant, it was some evidence of the age of the person insured, though certainly not conclusive. There can be no reason why it was not open to correction, if it was erroneous. This is not denied by the plaintiff in error, and it could not be successfully. It has repeatedly been held that errors and omissions in the proofs of loss furnished to insurers, in cases of fire insurance, may be corrected or supplied at the trial. In McMasters v. The Insurance Company of North America, 55 N. Y. 222, the plaintiff had stated in his proofs of loss that he had other insurance on the same property,-a fact which, if true, avoided his policy,-and he had verified his statement by his oath. Yet he was held not to be estopped by the statement, and he was permitted to prove at the trial that the statement was a mistake. Hubbard v. The Hartford Fire Insurance Co., 33 Iowa, 325, is to the same effect. So are the AEtna Fire Insurance Co. v. Allen, 48 Ill. 431, ''Comm. Fire Insurance Co. v. Huckenburger'', 52 id. 464, and numerous other cases that might be cited. But it is contended that evidence to show Nolan's affidavit was a mistake ought not to have been admitted, without notice to the insurers before the trial that such evidence would be offered; and in support of this position Campbell v. The Charter Oak Fire and Marine Insurance Co., 10 Allen (Mass.), 213, and Irving v. The Excelsior Insurance Co., 1 Bosw. (N.Y.), 500, are cited. In the former of these cases, it was held that, if an incorrect statement of a material matter has been made through mistake in a notice and proof of loss furnished to insurers, in compliance with a requirement in the conditions of insurance annexed to a policy, and no amended statement has been furnished to the insurers before the trial of an action upon the policy, the insured cannot be allowed to prove the mistake, and show that the facts were not as therein stated. But that case is very different from the one we have before us. There a true statement of the material fact in the proofs of loss was called for by the policy, and it was made a condition precedent to the insurer's liability. The erroneous statement, therefore, was relied upon by the assured, as the notice required by the conditions of the policy, and as a necessary basis of his suit. It must have been, in substance, averred in his declaration; and, for these reasons, the insurers were misled in regard to a matter which the assured had obligated himself to state truly, as a condition precedent to his right to remuneration for his loss. But even in that case the court declined to say that the incorrect statement in the proofs of loss could not be corrected. All that was decided was that the mistake and the correction could not be first made known to the insurers at the trial of the action to recover for the loss, and obviously for the reason that the correction then would be a surprise to them. Irving v. The Excelsior Fire Insurance Company is substantially the § me. Neither of the cases can be considered as deciding that an insured is estopped by an erroneous statement of a fact in the proofs of loss furnished by him, even though a true statement of that fact be a condition of the policy. He may correct it, though not first at the trial. But, in the case we have in hand, it was not a condition of the policy that a statement of the age of the deceased should accompany the proofs of death. The insurer's liability was independent of that. Nolan's affidavit, therefore, was superfluous; and it was but a statement of his conjecture. He stated that, according to the best of his judgment, the person whose life was insured was between sixty-six and seventy years of age at the time of his death. This can hardly be regarded as a contradiction of the statement made in the application. The insurers ought not to have been misled by it, and it does not appear that they were. They alleged no surprise when the evidence was offered to show that Nolan had no knowledge on the subject, and that he was mistaken. We cannot, therefore, say there was error in receiving the evidence.

The second assignment is, that the court erred in rejecting the minute-book of a lodge of odd fellows, offered by the plaintiffs in error to show the age of Dr. McDonough, as recorded therein in the usual manner of keeping the records of the lodge. It might, perhaps, be enough to say of this, nothing in the bill of exceptions shows that the minute-book, had it been received, would have tended to prove the age was greater than it was stated to be in the application for the policy. But, waiving this, and conceding also, that, when a policy on the life of a husband has been issued for the benefit of a wife, his admissions made prior to its issue are admissible in evidence to contradict her statements in her application, we are of opinion that none of the entries in the minute-book can be regarded as admissions of McDonough respecting his age. They were made by the secretary of the lodge before McDonough became a member of it, and they do not state that any representation of his age was made by him; much less, that he stated his age was as the secretary entered it. What was entered, then, was the declaration of a third party, not an admission by the person whose life was insured: it was mere hearsay, at best. It nowhere appears McDonough knew of the entry, or assented to it, when it was made, or that he ever afterwards acquiesced in it. True, he was subsequently elected secretary of the lodge, and then had the book of minutes in his charge. He may then have read the minutes, and thus have obtained notice that such an entry appeared therein. But it would be going very far to hold such knowledge was any evidence of an admission by him that the statement of his age made in the entry was true.

It is argued, however, that though the entry in the minute-book was the declaration of a third person, it was admissible on the principle of necessity; and we are referred to the line of decisions in which it is said to have been ruled that written entries or declarations of third persons are admissible as primary evidence after their decease, when they accompany, or are explanatory of, some material fact, or as secondary evidence, when the particular circumstances afforded reasonable assurance that the person who made them knew the fact stated, communicated it faithfully, and cannot be obtained to testify. Without pausing to inquire whether the doctrine asserted in these cases is as broad as the plaintiffs in error state it, the present case clearly fails to come within it. The secretary who made the entry in the lodge minute-book had, so far as it appears, no peculiar means of knowledge of Dr. McDonough's age, and there is no proof that he was not living at the trial. For aught that appears, he might have been called as a witness.

Again, it is argued that a man's age is one of the elements of his pedigree, and that, in proving pedigree, hearsay evidence is admitted. The arguments is fallacious. It is true, the age o a person may become material in questions of pedigree; but even then the hearsay declaration of strangers, persons not related by blood or marriage, are inadmissible to prove it. Moreover, the present case involves no question of pedigree. The proof of age was not offered for the purpose of showing parentage or descent, both of which were impertinent to the issue between the parties. The assignment of error cannot, therefore, be sustained.

Judgment affirmed.


text: Talk:Connecticut Mutual Life Insurance Company v. Schwenk/Opinion of the Court

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


text:
The Stephen Morgan

APPEAL from the Circuit Court of the United States for the District of Maryland.

The facts are stated in the opinion of the court.

Mr. F. W. Brune and Mr. Arthur G. Brown for the appellants.

Mr. I. Nevitt Steele and Mr. Thomas W. Hall, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Stephen Morgan


text: Talk:The Stephen Morgan

title: Talk:The Stephen Morgan


text:
The Stephen Morgan/Opinion of the Court

Parties who do not appeal from a final decree of a circuit court which is regular in form cannot be heard in opposition to the decree when the cause is removed here by the opposite party, unless it appears that the proceedings in removing the cause were unauthorized or irregular. They may be heard in support of the decree, and in opposition to every assignment of error filed by the appellants. The William Bagaley, 5 Wall. 377; Harrison v. Nixon, 9 Pet. 494; Canter v. Insurance Company, 3 id. 318.

Where the decree was in favor of the libellant in the District Court for a salvage service in saving goods at sea, this court held, on appeal here by the owners of the goods, that the decree was conclusive upon the libellant as to the amount of salvage awarded; that he could not, in the appellate court, claim any thing beyond that amount, since he had not, by any appeal on his part, controverted its sufficiency. Stratton v. Jarvis & Brown, 8 id. 10.

Compensation is claimed by the owner of the steamship 'Carolina' from the schooner 'Stephen Morgan,' her apparel, tackle, and furniture, for injuries caused to the steamship by the schooner in a collision which occurred between the two vessels during the early morning of the 3d of October, 1872, in the lower part of Chesapeake Bay, whereby, as the appellant alleges, the steamer was damaged to the amount of from $12,000 to $15,000.

Detailed description of the circumstances is given in the libel, from which it appears that the steamer, a vessel of eleven hundred tons burden, with a cargo of corn, was bound down the bay on a voyage from the port of Baltimore to Queenstown, Ireland, for orders, and that the schooner, a vessel of two hundred and fifty-nine tons, in ballast, was bound up the bay on a voyage from the port of New York to the port of Georgetown, in this district. Both the steamer and the schooner were in a seaworthy condition, well manned and equipped, and the evidence shows that they had competent lookouts, and that their signal-lights were properly displayed.

Certain errors of statement are exhibited in the description of the circumstances attending the collision, as given in the libel; but inasmuch as it is apparent that they were not made with intent to deceive, and that they did not have the effect to embarrass the opposite party or the courts below, they cannot have the effect to prevent the libellant from recovering just compensation for the injuries which the steamer received, if the evidence is sufficient to show that the decree below is correct upon the merits.

Process was issued; and the owners of the schooner appeared as claimants, and filed an answer.

Matters of fact are the chief reliance of the respondents; and, inasmuch as the allegations of the answer show, in the judgment of the court, that the schooner was in fault, they will be given in considerable fulness.

Prior to the collision, the mate had charge of the deck of the schooner; and the respondents allege that the weather was fair, and that it was clear overhead, with a slight mist or haze on the water; that the wind, from about southwes -by-south, was blowing a fresh and steady breeze; that the schooner was on her port tack, with all her sails set, except her main top-sail and jib top-sail; that her speed was about seven or eight knots an hour; that the mate, about ten minutes after he took charge of the deck, directed the man at the wheel to change the course of the schooner from north-by-west-half-west to north-by-west, which, as the respondents allege, was her proper course up the bay. Ten minutes later, as the respondents allege, the lookout saw a bright light ahead, about a point or a point and a half on the starboard bow of the schooner, and that the mate, who was standing aft to the leeward of the spanker-boom, saw the light about the same time, and looked at it through the glass. Though the morning was clear, the mate came to the conclusion that the vessel showing the light was at anchor, because he could only see the white light, and he thought the vessel was distant about a mile and a half, or two miles.

Estimates of the kind are necessarily more or less uncertain; but the answer states that the schooner was then a little above the light-house, and nearer to the western than the eastern shore of the bay; and the respondents admit that the schooner had plenty of room to sail and manoeuvre on each side of the place where the vessel showing the light appeared to be at anchor. When the mate first looked at the light, he told the man at the wheel that it was a ship at anchor, and he directed the helmsman to let the schooner luff about a point; and that being done, the statement is, that the light was brought to bear about two points on the schooner's starboard bow. Both of those orders were promptly obeyed; and the answer states that the helmsman, after the order to luff was executed, steadied the schooner, and 'let her run' for a short time; when the mate, thinking that the schooner might not fairly clear the ship, told the man at the wheel to luff a little more, so as to allow plenty of room.

Throughout those manoeuvres, both the mate and the lookout of the schooner supposed that the light ahead was shown by a vessel at anchor; and they never discovered their mistake until the steamer approached so near that they could see her smoke-stack without the aid of the glass. Alarm and confusion immediately ensued on the deck of the schooner, as sufficiently appears from the allegations of the answer. Obviously the peril was imminent; and the answer states that the mate, fearing that a collision would occur, ordered the helmsman to put the wheel hard a-port; and that the master came on deck at that moment, and asked the mate what was the matter; and being told that there was a light on the lee bow, the master looked under the boom, and, having seen the light, ordered the wheel to be put hard down, which was immediately done. Under the order given just before by the mate, the wheel had been turned only a few spokes to port, when the master gave the order to put the wheel hard down, which being promptly obeyed, the schooner began to luff; and at the moment of collision, which presently ensued, she was still coming into the wind, and her sails were shaking. Almost immediately after the helm of the schooner was put hard a-starboard the collision occurred, the schooner striking the steamer abaft the forerigging and a little forward of midships.

Testimony was taken on both sides; and the parties having been fully heard, the District Court decided that both vessels were in fault, and that the joint loss and damage should be equally divided between the owners of the two vessels. Pursuant to that decretal order, the loss and damage sustained by each were ascertained, and a final decree rendered in favor of the libellant, for the sum of $5,295, with costs and interest. Immediate appeal was taken by both parties to the Circuit Court, where additional testimony was taken; and the parties having been again fully heard, the Circuit Court reduced the damages to be awarded, and in all other respects affirmed the decree of the Dis rict Court. Due appeal to this court was taken by the respondents; but the libellant acquiesced in the decree of the Circuit Court.

Two errors, it is alleged by the appellants, were committed by the Circuit Court, as follows: 1st, That the court erred in awarding damages to the libellant, inasmuch as the allegations of the libel, if true, showed that the alleged collision could not have occurred. 2d, That the court erred in adjudging that the schooner was in fault.

Substantial accuracy in pleading should be observed by the libellant; and it is proper to remark, that a departure from that requirement, with intention to deceive, may constitute a bar to recovery, unless the faulty party is relieved from its consequences by leave of the court. Defects of the kind, when discovered, should be cured by amendment in all cases where the imperfection is calculated to deceive or mislead.

Incorrect allegations as to the position and course of the steamer are doubtless contained in the libel; but it does not appear that the inaccuracies were intended to deceive, or that they had the effect to mislead, the opposite party or the court. Specific objection to the libel on that account was not taken in the answer, nor does it appear that the errors in the allegations occasioned any embarrassment to the respondents in preparing the case for hearing.

Material errors undoubtedly occurred in the libel, but the respondents corrected the same in their answer; and, inasmuch as the hearing upon the merits was full in each of the courts below, the court here is not inclined to sustain that defence. The Syracuse, 12 Wall. 173.

Much discussion of the second defence is unnecessary, as both the proofs and the allegations of the answer show that the schooner violated the sailing rules enacted by Congress. Steamships, under the circumstances described, are required to keep out of the way of sailing-ships; but the correlative rule is, that the sailing-ship shall keep her course, subject to certain qualifications, which have no application in the cause before the court. 13 Stat. 61.

Sailing-vessels approaching a steamer are required to keep their course, on account of the correlative duty of the steamer to keep out of the way, in order that the steamer may know the position of the object to be avoided, and that she may not be baffled or led into error in her endeavor to comply with the requirement. Steamship Company v. Rumball, 21 How. 384.

Three changes of course were made by the schooner, in violation of that rule, which is all that need be remarked on the subject, except to say that the failure of the steamer to perform her duty to keep out of the way is no defence for the schooner in violating the express command of the sailing rule. Beyond all doubt, the steamer might have kept out of the way; and it is clear that the decree below, adjudging both vessels in fault, was correct. All that the steamer did in the outset was to change her course one point; and the evidence satisfies the court that, if she ever did any thing more to prevent a collision, it was not done in season to be of any avail. Porting the helm a point when the light of a sailing-vessel is first observed, and then waiting until a collision is imminent before doing any thing further, does not satisfy the requirements of the law. The Carrol, 8 Wall. 302.

Other support to that conclusion might be invoked; but it is quite unnecessary, as the owner of the steamer did not appeal, and cannot be heard, except in defence of the decree. Airey v. Morrill, 2 Curt. C. C. 8; Allen v. Hatch, 2 id. 147; Chittenden v. Brewster, 2 Wall. 196; The Quickstep, 9 id. 672.

Both vessels having been in fault, the settled rule in this court is, that the damages must be divided. The Atlas, 93 U.S. 319.

Viewed in any light, it is clear that the decree below was correct, and that there is no error in the record.

Decree affirmed.

title: The Stephen Morgan/Opinion of the Court


text: Talk:The Stephen Morgan/Opinion of the Court


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Glenny v. Langdon (94 U.S. 604)

MOTION to set aside an order dismissing an appeal from the Circuit Court of the United States for the Southern District of Ohi.

Mr. J. L. Miner for the appellant, in support of the motion.

Mr. Stanley Matthews, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Glenny v. Langdon (94 U.S. 604)


text: Talk:Glenny v. Langdon (94 U.S. 604)

title: Talk:Glenny v. Langdon (94 U.S. 604)


text:
Glenny v. Langdon (94 U.S. 604)/Opinion of the Court

The bill in this case shows upon its face that the suit was prosecuted by Glenny as a representative creditor, and that the other creditors named had the right to rely upon him for the protection of their interest, until notice to the contrary. On Saturday, the 13th January, Glenny, at Cincinnati, Ohio, entered into a stipulation with the defendants, consenting to a dismissal of the suit on their paying the costs. A copy of this stipulation was, on the same day with its execution, served, at Cincinnati, on the counsel representing the complaint and those interested with him in the litigation, accompanied by a notice that a motion had been filed to dismiss the appeal in accordance therewith; but no time was named for the hearing. On the same day, the counsel for the defendants forwarded the stipulation to the clerk, with the request that it be docketed in accordance with the practice of the court. In the letter transmitting the motion it was intimated that there might be opposition, and in that event a request was made for notice, and information as to the practice in such cases.

On Tuesday, the 16th of January, the stipulation was presented to the court by Mr. Carpenter, at the request of the clerk, made upon the authority of the letter transmitting it, and the suit was dismissed. On Monday, the 15th January, the counsel for the complainant wrote the clerk from Cincinnati, asking him not to delay printing the record on account of the motion, and intimating that the motion would not be sustained. A memorandum was made upon this letter by the clerk, to the effect that he replied on the 20th January, giving notice of the dismissal on the 16th. The letter of the clerk in reply did not reach the counsel, and he had no notice of what had been done until about the first of this month, and immediately thereafter the present motion was made.

Under the circumstances, we think the motion to dismiss was improvidently granted, and the order to that effect entered Jan. 16, is, therefore, set aside. The notice of the motion was insufficient and irregular, as it designated no time for the hearing. It is evident, also, that the counsel for the complainant supposed, as he properly might, that he was to have further information of the time when the motion would be called up. No other questions argued upon the present motion are decided, but the cause is reinstated, and the parties placed in the same condition they would be if the order of dismissal had not been entered.

Motion granted.


text: Talk:Glenny v. Langdon (94 U.S. 604)/Opinion of the Court


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Russell v. Place

APPEAL from the Circuit Court of the United States for the Northern District of New York.

Mr. Horace E. Smith for the appellant.

Mr. T. L. Wakefield, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Russell v. Place


text: Talk:Russell v. Place

title: Talk:Russell v. Place


text:
Russell v. Place/Opinion of the Court

This is a suit for an infringement of a patent to the complainant for an alleged new and useful improvement in the preparation of leather, and is similar in its general features to the suit of the complainant against Dodge, 93 U.S. 460. It is submitted upon substantially the same testimony, and presents, with one exception, the same questions for determination. That exception relates to the operation, as an estoppel against setting up the defences here made, of a judgment recovered by the complainant against the defendants in an action at law for the infringement of the patent.

The bill of complaint sets forth the invention claimed, the issue of a patent for the same, its surrender for alleged defective and insufficient description of the invention, its reissue with an amended specification, and the recovery of judgment against the defendants for amages in an action at law for a violation of the exclusive privileges secured by the patent.

The bill then alleges the subsequent manufacture, use, and sale by the defendants, without the license of the patentee, of the alleged invention and improvement, and prays that they may be decreed to account for the gains and profits thus acquired by them, and be enjoined from further infringement.

The answer admits the issue of the patent, its surrender and reissue, and, as a defence to this suit, sets up in substance the want of novelty in the invention, its use by the public for more than two years prior to the application for the patent, and that the reissue, so far as it differs from the original patent, is not for the same invention. The answer also admits the recovery by the complainant in the action at law of the judgment mentioned, but denies that the same issues were involved or tried in that action which are raised in this suit.

The action at law was brought in the Circuit Court of the United States for the Northern District of New York, in the ordinary form of such actions for infringement of the privileges secured by a patent. The defendants pleaded the general issue, and set up, by special notice under the act of Congress, the want of novelty in the invention, and its use by the public for more than two years prior to the application for a patent. The plaintiff obtained a verdict for damages, upon which the judgment mentioned was entered; and this judgment, it is now insisted, estops the defendants in this suit from insisting upon the want of novelty in the invention patented, and its prior use by the public, and also from insisting upon any ground going to the validity of the patent which might have been availed of as a defence in that action, and, of course, upon the want of identity in the invention covered by the reissue with that of the original patent.

It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,-as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.

Thus, in the case of the Washington, Alexandria, & Georgetown Steam-Packet Company v. Sickles, reported in the 24th of Howard, a verdict and judgment for the plaintiff in a prior action against the same defendant on a declaration, containing a special count upon a contract, and the common counts, was held by this court not to be conclusive of the existence and validity of the contract set forth in the special count, because the verdict might have been rendered without reference to that count, and only upon the common counts. Extrinsic evidence showing the fact to have been otherwise was necessary to render the judgment an estoppel upon those points.

When the same case was before this court the second time, Packet Company v. Sickles, 5 Wall. 580, the general rule with respect to the conclusiveness of a verdict and judgment in a former suit between the same parties, when the judgment is used in pleading as an estoppel, or is relied upon as evidence, was stated to be substantially this: that, to render the judgment conclusive, it must appear by the record of the prior suit that the particular matt r sought to be concluded was necessarily tried or determined, that is, that the verdict in the suit could not have been rendered without deciding that matter; or it must be shown by extrinsic evidence, consistent with the record, that the verdict and judgment necessarily involved the consideration and determination of the matter.

Tested by these views, the question presented by the plaintiff in this case, upon the effect as evidence of the verdict and judgment in the action at law, is of easy solution. The record of that action does not disclose the nature of the infringement for which damages were recovered. The declaration only avers that the plaintiff was the original and first inventor of a new and useful improvement in the preparation of leather, and that he obtained a patent for the same, and, on its surrender, a new patent, with an amended specification, without describing with other particularity the nature and operation of the invention; and alleges, as the infringement complained of, that the defendants have made and used the invention, and have caused others to make and use it. The patent contains two claims: one for the use of fat liquor generally in the treatment of leather, and the other for a process of treating barktanned lamb or sheep skin by means of a compound composed and applied in a particular manner. Whether the infringement for which the verdict and judgment passed consisted in the simple use of fat liquor in the treatment of leather, or in the use of the process specified, does not appear from the record. A recovery for an infringement of one claim of the patent is not of itself conclusive of an infringement of the other claim, and there was no extrinsic evidence offered to remove the uncertainty upon the record: it is left to conjecture what was in fact litigated and determined. The verdict may have been for an infringement of the first claim; it may have been for an infringement of the second; it may have been for an infringement of both. The validity of the patent was not necessarily involved, except with respect to the claim which was the basis of the recovery. A patent may be valid as to a single claim and not valid as to the others. The record wants, therefore, that certainty which is essential to its operation as an estoppel, and does not conclude the defendants from contesting the infringement or the validity of the patent in this suit.

The record is not unlike a record in an action for money had and received to the plaintiff's use. It would be impossible to affirm from such a record, with certainty, for what moneys thus received the action was brought, without extrinsic evidence showing the fact; and, of course, without such evidence the verdict and judgment would conclude nothing, except as to the amount of indebtedness established.

According to Coke, an estoppel must 'be certain to every intent;' and if upon the face of a record any thing is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence. See Aiken v. Peck, 22 Vt. 260, and Hooker v. Hubbard, 102 Mass. 245.

Decree affirmed.

MR. JUSTICE CLIFFORD dissented.

title: Russell v. Place/Opinion of the Court


text: Talk:Russell v. Place/Opinion of the Court


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Page:Triangles of life, and other stories.djvu/212

T was a long time before we knew for certain that Mary's brother James was shook after Maggie Charlesworth, the girl from Wall's station. James always kept his business and his feelings to himself, if he had any—I suppose he had. Perhaps he felt as much as, or more than, the most of us, but hadn't the gift of expression, and felt and suffered more on that account—but that's got nothing to do with it.

Maggie was a sort of adopted daughter at Wall's, and took a great fancy to Mary, my wife, as all the girls and most of the women did. She used to ride over to our place two or three times on weekdays and always on Sunday afternoon. Mary and Maggie were great chums. Maggie was a big, fine-looking Bush girl—a rare lump of a girl. A regular tomboy, she used to be, they said, and chummy with every one, and they said she used to tuck her petticoats under her when she thought she was alone, and gallop through the Bush, riding man fashion. In fact, they said she never got used to the side-saddle.

Even Mary, a woman, and Maggie's friend, and Rh


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New Jersey Mutual Life Insurance Company v. Baker

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

The facts are stated in the opinion of the court.

Mr. Dennis McMahon for the plaintiff in error.

The court declined to hear counsel for the defendant in error.

MR. JUSTICE HUNT delivered the opinion of the court.


text: Talk:New Jersey Mutual Life Insurance Company v. Baker


text:
New Jersey Mutual Life Insurance Company v. Baker/Opinion of the Court

On the 28th of June, 1869, the New Jersey Mutual Life Insurance Company made its policy of insurance upon the lives of Anson M. Baker and Martha, his wife, undertaking, upon the death of either of them, to pay the survivor the sum of $10,000. Martha Baker died on the 6th of December, 1870, and this action is brought to recover the amount insur d by such policy. Upon a trial before the circuit judge and a jury, a verdict was rendered in favor of the plaintiff for the amount claimed.

The insurance company seeks to set aside the judgment rendered upon this verdict for the reasons following:--

1. That the court erred in refusing the request made by the defendant's counsel to direct the jury to find a verdict for the defendant, on the ground that the evidence was not sufficient to sustain a verdict for the plaintiff.

This request was based upon the allegation that there was undisputed evidence of a violation of 'certain expressed warranties contained in their application, the 22d,' which referred to the party's usual medical attendant, and the answer thereto; and also 'in regard to question No. 7, what members of the party's family have died of or been afflicted with' certain diseases named, and the answers thereto.

It will not do for counsel, in requests to the court, to assume the existence of facts, and ask a charge to the jury based upon such assumption. Gladmon v. Railroad Company, 5 Wall. 401. Nor will it do for counsel, upon argument before this court, to insist that, because the counsel below made such assumption, we are to consider the assumed facts as existing. An examination of the record before us shows that the statements upon which the above request was made are without foundation. There is no evidence that the policy contained any agreement that the statements of the application should be express warranties, or that they should have any effect whatever; there is no evidence that the application, which was upon the trial assumed to have been made, and which contained the questions and answers referred to, was ever presented to the insurance company; there is no evidence that the policy of Mr. and Mrs. Baker was based upon such application; there is no evidence that the policy issued referred in any manner to this application, or that this application referred in any manner to the policy. On all these points we have no information. The record is absolutely silent as to each of them.

The only information we can obtain of the contents of the policy is from the complaint and the answer. The complaint, not referring to any application, alleges the execution of a policy of insurance for the sum of $10,000 upon the lives of Baker and his wife, in consideration of the payment of the sum of $412.20 at the time of its issuance, and of the future annual payment of the same sum; alleges the death of the wife, notice to the company, the service of proofs, and performance of all the conditions required.

The company answered, admitting the allegations of the complaint, 'except as hereinafter modified, and except the allegation that the plaintiff performed all the conditions of the policy,' as to which it alleges a failure to perform, by reason of concealing certain information set forth. The answer also denies that the agreement to pay the sum named formed the sole consideration of the policy, but alleges that the representations made in the 'application therefor' formed a part of the consideration.

The answer proceeds, '2dly, and as matter constituting a defence to the action,' to allege the making an application in writing and the propounding of certain questions therein, and the answers thereto, and the agreement that such statements should form the basis of the contract of insurance; that, if untrue, the policy should be void, and alleging that such statements were untrue.

All the special matters thus set forth are matters in defence, and the burden of proving their truth rested upon the defendant. If this application formed the basis of the contract of insurance, the defendant should have made proof to that effect at the trial. If the plaintiff had stipulated that any untrue statement (whether material or not, whether wilfully false or mistakenly untrue) should destroy his policy, the defendant should have proved at the trial a fact so material. No such proof appears in the record.

By the course of the trial, t was assumed that an application had been made, and that it contained the questions and answers numbered as above set forth. It is, however, nowhere admitted or assumed that it formed the basis of the policy, or that the policy contained any stipulation in regard to it.

The facts upon which the requests to charge, not appearing by the record, cannot be assumed to exist; and, without examining whether they were properly refused, if the facts had been shown, we can give them no consideration.

The second general objection of the defendant is based upon an alleged error in admitting evidence of what took place when the answers to the questions already referred to were written in an application for insurance. These questions were put and the answers were written down by Dr. Wells, the agent of the insurance company, and the application was signed by Mrs. Baker. There were present Mr. and Mrs. Baker, Dr. Wells, the agent of the company, and Dr. Hibbard. The proceedings in relation to question No. 12 will illustrate the course of the trial. Question: 'Have the party's parents, brothers, or sisters been afflicted with pulmonary or other diseases hereditary in their nature?' to which the answer was written, 'No.' Dr. Hibbard was asked to state the conversation that took place between himself, Dr. Wells, the agent of the company, and Mrs. Baker, when this question was put and answered. To this evidence objection was made, on the ground that the answer was in writing, and that it was not competent to vary the same by parol testimony. The objection was overruled, and the witness answered, 'I asked in reference to the cause of the death of her brothers and sisters, whether they died of pulmonary consumption. She said it was reported that two or three of them died of pulmonary consumption, but there was a difference of opinion respecting that, and she was unable to decide, but her view of the question was they had not died of consumption.' The same question was put on the trial to the plaintiff as had been put to Dr. Hibbard, and a similar objection was made. He gave the answer of Mrs. Baker as similar to that given by Dr. Hibbard, but more in detail as to the supposed causes of the deaths in the family. He adds: 'After she had completed this answer, Dr. Wells said, that where she had no personal knowledge she was to answer, 'Don't know.' Dr. Wells then wrote out the answer. I did not see what he wrote.' He testified also that the application was not read over to Mrs. Baker after being filled out by Dr. Wells.

The subsequent evidence of Dr. Wells was in some respects contradictory to this, he stating, among other things, that the answers were read over to Mrs. Baker; but as the question is upon the admissibility of the evidence, it is not important to consider it.

It is manifest, upon the testimony of the witnesses, that Dr. Wells, the agent of the company, undertook to construe and interpret the answers of the applicant, and wrote down and inserted in the application his construction and interpretation of them, and not the answers themselves. The evidence objected to was admissible to show that the statement was not that of the applicant, although signed by her. The statement was one prepared by the company, for which it was responsible, and it cannot be set up to defeat its policy. The Insurance Company v. Mahone, 21 Wall. 152, is a full and satisfactory authority to this point, as is also The Insurance Company v. Wilkinson, 13 id. 222. In the former case the opinion was given by Mr. Justice Strong, and in the latter by Mr. Justice Miller, and each of them contains a full and careful consideration of the precise question before us. These cases are so recent and so fully in point that further discussion is unnecessary.

The objections to the other questions are of the same character.

Upon the record before us there can be no doubt that the judgment should be affirmed; and it is.

So ordered.


text: Talk:New Jersey Mutual Life Insurance Company v. Baker/Opinion of the Court


text: United States v. Joseph

title: United States v. Joseph


text: Talk:United States v. Joseph

title: Talk:United States v. Joseph


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

ERROR to the Supreme Court of the Territory of New Mexico.

Mr. Solicitor Phillips for the United States.

Mr. S. B. Elkins, contra.

MR. JUSTICE MILLER delivered the opinion of the court. Sect. 2118 of the Revised Statutes, which was originally enacted June 30, 1834, declares that every person who makes a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or surveys or attempts to survey said lands, or to designate any of the boundaries by marking trees or otherwise, is liable to a penalty of $1,000. By sect. 7 of the act of July 27, 1851, it was enacted 'that all laws now in force regulating trade and intercourse with the Indian tribes, or such provisions of the same as may be applicable, shall be, and the same are hereby, extended over the Indian tribes in the Territories of New Mexico and Utah.'

The case before us was an action brought by the United States in the proper court in the Territory of New Mexico, to recover the penalty denounced in the section above recited. The petition alleges that defendant 'did make a settlement in, and now occupies and is settled on, lands of the pueblo tribe of Indians of the pueblo of Taos, in the county of Taos, to wit, ten acres of land (describing its boundaries), by then and there building houses and making fields thereon. . . . Said lands then and there, and at the time of bringing this suit, belonging to said pueblo tribe of Indians of the pueblo of Taos aforesaid, and secured to said pueblo tribe of Indians of the pueblo of Taos aforesaid, by patent from the United States.'

A demurrer to this petition was sustained in the Supreme Court of the Territory, and we are called on to decide whether it was rightfully sustained.

Were the pueblo Indians, and the lands held by them, on which this settlement was made, within the meaning of the act of Congress of 1834, and its extension to the Territory of New Mexico, by the act of 1851? This question resolves itself into two other:--

1. Are the people who constitute the pueblo or village of Taos an Indian tribe within the meaning of the statute?

2. Do they hold the lands on which the settlement mentioned in the petition was made by a tenure which brings them within its terms?

The first question is not concluded even on demurrer, because the petition calls them 'the pueblo tribe of Indians of the pueblo of Taos;' for if these people, with others of the same character, are a well-known class, whose history, domestic habits, and relations to the government are matters of public notoriety, the court, being informed who they are by the description of them in the petition, as 'pueblo Indians of the pueblo of Taos,' is not bound by the use of the additional word 'tribe' to disregard that knowledge, and assume that they are tribal Indians within the meaning of the statute regulating the intercourse of the white man with this latter class of Indians.

The character and history of these people are not obscure, but occupy a well-known page in the story of Mexico, from the conquest of the country by Cortez to the cession of this part of it to the United States by the treaty of Guadaloupe Hidalgo. The subject is tempting and full of interest, but we have only space for a few well-considered sentences of the opinion of the chief justice of the court whose judgment we are reviewing.

'For centuries,' he says, 'the pueblo Indians have lived in villages, in fixed communities, each having its own municipal or local government. As far as their history can be traced, they have been a pastoral and agricultural people, raising flocks and cultivating the soil. Since the introduction of the Spanish Catholic missionary into the country, they have adopted mainly not only the Spanish language, but the religion of a Christian church. In every pueblo is erected a church, dedicated to the worship of God, according to the form of the Roman Catholic religion, and in nearly all is to be found a priest of thi church, who is recognized as their spiritual guide and adviser. They manufacture nearly all of their blankets, clothing, agricultural and culinary implements, &c. Integrity and virtue among them is fostered and encouraged. They are as intelligent as most nations or people deprived of means or facilities for education. Their names, their customs, their habits, are similar to those of the people in whose midst they reside, or in the midst of whom their pueblos are situated. The criminal records of the courts of the Territory scarcely contain the name of a pueblo Indian. In short, they are a peaceable, industrious, intelligent, honest, and virtuous people. They are Indians only in feature, complexion, and a few of their habits; in all other respects superior to all but a few of the civilized Indian tribes of the country, and the equal of the most civilized thereof. This description of the pueblo Indians, I think, will be deemed by all who know them as faithful and true in all respects. Such was their character at the time of the acquisition of New Mexico by the United States; such is their character now.'

At the time the act of 1834 was passed there were no such Indians as these in the United States, unless it be one or two reservations or tribes, such as the Senecas or Oneidas of New York, to whom, it is clear, the eleventh section of the statute could have no application. When it became necessary to extend the laws regulating intercourse with the Indians over our new acquisitions from Mexico, there was ample room for the exercise of those laws among the nomadic Apaches, Comanches, Navajoes, and other tribes whose incapacity for self-government required both for themselves and for the citizens of the country this guardian care of the general government.

The pueblo Indians, if, indeed, they can be called Indians, had nothing in common with this class. The degree of civilization which they had attained centuries before, their willing submission to all the laws of the Mexican government, the full recognition by that government of all their civil rights, including that of voting and holding office, and their absorption into the general mass of the population (except that they held their lands in common), all forbid the idea that they should be classed with the Indian tribes for whom the intercourse acts were made, or that in the intent of the act of 1851 its provisions were applicable to them. The tribes for whom the act of 1834 was made were those semi-independent tribes whom our government has always recognized as exempt from our laws, whether within or without the limits of an organized State or Territory, and, in regard to their domestic government, left to their own rules and traditions; in whom we have recognized the capacity to make treaties, and with whom the governments, state and national, deal, with a few exceptions only, in their national or tribal character, and not as individuals.

If the pueblo Indians differ from the other inhabitants of New Mexico in holding lands in common, and in a certain patriarchal form of domestic life, they only resemble in this regard the Shakers and other communistic societies in this country, and cannot for that reason be classed with the Indian tribes of whom we have been speaking.

We have been urged by counsel, in view of these considerations, to declare that they are citizens of the United States and of New Mexico. But abiding by the rule which we think ought always to govern this court, to decide nothing beyond what is necessary to the judgment we are to render, we leave that question until it shall be made in some case where the rights of citizenship are necessarily involved. But we have no hesitation in saying that their status is not, in the face of the facts we have stated, to be determined solely by the circumstance that some officer of the government has appointed for them an agent, even if we could take judicial notice of the existence of that fact, suggested to us in argument.

Turning our attention to the tenure by which hese communities hold the land on which the settlement of defendant was made, we find that it is wholly different from that of the Indian tribes to whom the act of Congress applies. The United States have not recognized in these latter any other than a passing title with right of use, until by treaty or otherwise that right is extinguished. And the ultimate title has been always held to be in the United States, with no right in the Indians to transfer it, or even their possession, without consent of the government.

It is this fixed claim of dominion which lies at the foundation of the act forbidding the white man to make a settlement on the lands occupied by an Indian tribe.

The pueblo Indians, on the contrary, hold their lands by a right superior to that of the United States. Their title dates back to grants made by the government of Spain before the Mexican revolution,-a title which was fully recognized by the Mexican government, and protected by it in the treaty of Guadaloupe Hidalgo, by which this country and the allegiance of its inhabitants were transferred to the United States.

With the purpose of carrying into effect this provision of that theaty, Congress directed the surveyor-general of New Mexico to make inquiry into all grants of the Spanish and Mexican governments, and to report to that body on their validity. Such reports were made from time to time, one of which included, and recommended for confirmation, this claim of 'the pueblo of Taos, in the county of Taos,' not the pueblo Indians of Taos, but the pueblo of Taos; and by an act of Congress of Dec. 22, 1858, 11 Stat. 374, the title was confirmed, and the commissioner of the land-office ordered to 'issue the necessary instructions for the survey of all of said claims, as recommended for confirmation by the said surveyor-general, and cause a patent to issue therefor, as in ordinary cases to private individuals: Provided, that the confirmation shall only be construed as relinquishment of all title and claim of the United States to any of said lands, and shall not affect any adverse valid rights, should such exist.'

It is unnecessary to waste words to prove that this was a recognition of the title previously held by these people, and a disclaimer by the government of any right of present or future interference, except such as would be exercised in the case of a person holding a competent and perfect title in his individual right.

If the defendant is on the lands of the pueblo, without the consent of the inhabitants, he may be ejected, or punished civilly by a suit for trespass, according to the laws regulating such matters in the Territory. If he is there with their consent or license, we know of no injury which the United States suffers by his presence, nor any statute which he violates in that regard.

Judgment affirmed.

NOTE.-In United States v. Santistevan, a suit for a similar offence, and brought here by writ of error to the same court, the same judgment was entered as in the preceding case.


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


text:
Erskine v. Milwaukee and St Paul Railway Company

ERROR to the Circuit Court of the United States for the Eastern District of Wisconsin.

This was an action brought by the Milwaukee and St. Paul Railway Company against Erskine, collector of internal revenue for the First Collection District of the State of Wisconsin, to recover $17,296.12 paid by the company under protest in the year 1870, and by him claimed to be due from it for taxes under the laws of the United States.

There was a judgment in favor of the company for $3655.07 and costs. Each party excepted to the rulings of the court below, and sued out a writ of error. The exceptions of the company were abandoned here. The only question submitted was, whether the company was liable for any sum beyond the penalty of $1,000 for its default in paying the tax of five per cent upon the amount paid to the holders of the oupons, which represented the interest on its bonds, and upon the dividends payable to its stockholders.

The court below held that the company was not so liable.

Mr. John W. Cary for the company.

Mr. Assistant Attorney-General Smith, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.


text: Talk:Erskine v. Milwaukee and St Paul Railway Company


text:
Erskine v. Milwaukee and St Paul Railway Company/Opinion of the Court

No error has been assigned by the railroad company upon this record, for the reason that the rulings to which the company took exceptions are all sustained by our decisions in Barnes v. Railroad Companies, 17 Wall. 294, and Stockdale v. Insurance Companies, 20 id. 323.

We think that the Circuit Court was right in holding that the only penalty to which the company was liable for default under sect. 122 of the internal revenue act of June 30, 1864, 13 Stat. 284, as amended July 13, 1866, 14 id. 138, was that of $1,000 specially provided for in that section. The penalty of five per cent and interest at the rate of one per cent per month, apply only to cases of default in the payment of duties upon incomes imposed by sect. 119 as amended. 13 id. 283; 14 id. 480.

Judgment affirmed, the costs incident to each writ to be paid by the party suing it out.


text: Talk:Erskine v. Milwaukee and St Paul Railway Company/Opinion of the Court


text:
Eames v. Home Insurance Company

APPEAL from the Circuit Court of the United States for the Southern District of Illinois.

The facts are stated in the opinion of the court.

Mr. J. C. Robinson for the appellant.

Mr. George O. Ide, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Eames v. Home Insurance Company


text: Talk:Eames v. Home Insurance Company

title: Talk:Eames v. Home Insurance Company


text:
Eames v. Home Insurance Company/Opinion of the Court

This is a bill in equity filed in the court below by Eames and Cooley, the appellants, against the Home Insurance Company of New York, the appellees, to require said company to issue to the complainants a policy of insurance against loss or damage by fire, in pursuance of a contract for that purpose alleged to have been made with their agents in Illinois, and for such other and further relief as shall be just and equitable. The court below, upon hearing, dismissed the bill.

The contract referred to is alleged to have been made by means of certain parol communications and written correspondence, which are detailed and set forth in the record. The subject on which insurance was desired by the complainants was a flouring-mill and its machinery situated at Staunton, in Macoupin County, Ill., which was destroyed by fire in the night of 28th of October, 1872. Cooley, one of the complainants, had previously procured insurance on the same property from the defendant in February, 1870, which had run for two years, and had then been permitted to expire. The amount of insurance at that time was $3,500, and the rate five per cent per annum. The policy was issued on the 28th of February, 1870, but ran one year from the 14th of that month, and was renewed for a second year by the payment of a second premium in 1871.

Cooley having taken Eames into partnership and sold him half of the property, the application for the insurance in question was made in their joint names. The negotiations were commenced on the twelfth day of October, 1872, at Bunker Hill, in Macoupin County, between Eames and James A. Beach, the company's locan agent at that place. They had a general agent, A. C. Ducat, at Chicago; and it seems that local agents were not authorized to take extra-hazardous risks, to which class the property in question belonged, without referring to the general agent.

At the interview referred to, Eames, there being then no insurance on the mill, applied to Beach, who was agent for the Home Insurance Company of New York, and of the Hartford and Phoenix companies of Hartford, Conn., for $9,000 insurance; and an application to the Home Insurance was made out on a printed blank of the company for $4,000, at five and a half per cent. The application, numbered 105, was duly filled up with answers to the various questions, and signed by Eames, in the name of 'Eames & Cooley,' and dated the twelfth day of October, 187. From an agreement as to certain facts made by the attorneys in the cause, it appears that said Beach forwarded said application by mail to Arthur C. Ducat, the general agent, in a letter, of which the following is a copy:--

'[Office of James A. Beach, notary public and insurance agent. Represents Home Insurance Company of New York, Hartford of Hartford, Phoenix of Hartford, Andes of Cincinnati.]

'BUNKER HILL, ILL., Oct. 12, 1872.

'A. C. DUCAT, Esq., ''Genl. Agt.:''

'DEAR SIR,-I enclose app. for ins. which you have carried for two years, and was not renewed in Feb'y, because I asked 5 1/2 (you were carrying it at 5 per cent). They now want to insure again. The other large mill in Staunton has lately burned, which is, I suppose, the reason. I have not learned the particulars, but some think the owners burned it.

'Yours truly,

JAS. A. BEACH.' That, on the 14th October, 1872, said Ducat received said letter of Beach and its enclosure, and wrote to said Beach in respect thereto a letter, whereof the following is a copy:--

'[Home Insurance Company of New York. General agency for States of Illinois, Indiana, Wisconsin, and Minnesota. Arthur C. Ducat, general agent.]

'CHICAGO, Oct. 14, 1872.

'JAS. A. BEACH, Agt., Bunker Hill, Ill.:

'DR. SIR,-We have yours of the 12th, and application of Eames & Cooley on flour-mill at Staunton. Our present rate on this risk will not be less than 6 1/2 per cent, which is probably more than they will pay. If they wish a Home policy at that rate let us know, and we will send you ticket.

'Truly yours,

ARTHUR C. DUCAT, ''Genl. Agent''.'

Which letter was returned to said Ducat by mail by said Beach, Oct. 18, 1872, with the indorsement in the handwriting of said Beach:--

'The Phoenix will carry $3,000 at 6 per cent; will you not do the same?

Yours truly,

'JAMES A. BEACH.'

Across which is indorsed, in pencil, Oct. 18, 1872, in the handwriting of said A. C. Ducat:--

'No; 6 1/2 per cent is our rate.'

On Oct. 18, 1872, said Ducat mailed to said Beach a letter, of which the following is a copy:--

'[Letter-head of Chicago general agency.]

'CHICAGO, ILLS., Oct. 18, 1872.

'JAMES A. BEACH, Agt., Bunker Hill, Ill.:

'DR. SIR,-Yours received. We cannot go under 6 1/2 per cent on Eames & Cooley flour-mill.

'Truly yours,

ARTHUR C. DUCAT, ''Genl. Agent''.'

At this point Eames testifies that he received a letter from Beach, on or about the twenty-second day of October, 1872 (which was destroyed by the fire in the mill, and, therefore, could not be produced), in which Beach stated that he had received an answer from the Home Company, and that they would not take the risk for less than six and a half per cent. He further testifies that this letter enclosed an application to the Hartford Insurance Company, partly filled up by Beach, and sent to him (Eames) to answer some of the questions, and to be signed by him; that, in a previous conversation between him and Beach, his complement of insurance not being made up by the four thousand that the Home would take, and the three thousand that Phoenix would take, Beach told him that he was agent for the Hartford, but did not know whether they would take any risk, but that he would write them, and, if they would, he would send him (Eames) an application to fill out; that, in a day or two after, the letter referred to came, enclosing the said application to the Hartford, filled up for $2,000, at the rate of six per cent; that the letter added that he (Beach) had not heard from the Hartford Company, but as he was going to write to him (Eames) in regard to the Home proposition, he enclosed the Hartford application, partly filled up, for Eames to finish and return, so that, if the Hartford Company would take the risk, he would have the application ready to send right on. In answer to this letter of Beach, Eames says he wrote his next letter, enclosing the application to the Hartford Company, and accepting the proposition of the Home Company.

It is admi ted that he wrote, and that Beach received, the following letter on or about Friday, the 25th of October, 1872, enclosing the application referred to, filled up and signed; namely:--

'STAUNTON, ILL., Oct. 25, 1872.

'Mr. JAMES A. BEACH, Bunker Hill, Ill.:

'DEAR SIR,-I believe I have answered all the questions necessary, and to the best my knowledge. 6 1/2 per cent is pretty heavy, but I guess we will have to stand it, as I do not know where we can do better at present.

'Yours, &c.,

EAMES & COOLEY.'

On Monday, the 28th of October, 1872, Beach mailed a letter to Ducat, the general agent, of which the following is a copy:--

'BUNKER HILL, Oct. 28, 1872.

'Hon. A. C. DUCAT.

'No. 105, Staunton Mill, @ 6 1/2.

'DEAR SIR,-Please send me a ticket for $4,000, ins. on appl'n.

'Yours truly,

JAMES A. BEACH.' Oct. 29, 1872, Beach sent telegraphic message to Ducat, of which the following is copy:--

'[Dated Bunker Hill, Ill., 29, 1872; received at Chicago, Oct. 29, 11.20 A.M.] 'To A. C. DUCAT, Home Ins. Co.:

'Do not return ticket for mill insurance: it is burned.

'JAS. A. BEACH.'

Oct. 29, 1872, Ducat mailed to said Beach a letter, of which the following is a copy:--

'[Home Insurance Company of New York, general agency for States of Illinois, Indiana, Wisconsin, and Minnesota. Arthur C. Ducat, general agent.]

'CHICAGO, ILL., Oct. 29, 1872.

'JAS. A. BEACH, Agt., Bunker Hill, Ill.:

'DEAR SIR,-Yours of the 28th, requesting ticket on the staunton Mill, came duly this morning, and in a few minutes your telegram arrived announcing the burning of the mill. We came very near being caught, but are glad it is no worse. If we had not demanded the additional 1/2 per cent we should have had $4,000 to pay.

Yours truly,

'ARTHUR C. DUCAT.'

This is all the correspondence bearing upon the alleged contract, and the first question is, whether the clause in Eames's letter of Oct. 25, in these words, 'Six and a half per cent is pretty heavy, but I guess we will have to stand it, as I do not know where we can do better at present,' refers to the negotiation with the Home Insurance Company, and was an acceptance of their terms. Eames insists that that was what he meant by it; and if he did, on or about the 22d of October, receive a letter from Beach of the purport which he states, it would seem that there could be little doubt on the subject. Mr. Beach, in giving his testimony, was at first uncertain whether he wrote a letter or not; he had no recollection of sending such a letter; and his final conclusion was, that he handed the application to the Hartford Company to Eames at Bunker Hill. Eames, on the contrary, testifies that he did not see Beach after being informed of the general agent's letter of Oct. 18, stating that the Home Company could not go under six and a half per cent, until after the fire. The presumptions which apply in such cases are in favor of Eames's account. His testimony as to receiving the letter is affirmative, and his recollection of its contents circumstantial. Beach's is negative: he does not recollect writing it; and the interview in which he supposes he gave Eames the application to the Hartford may well be confounded with the interview they had when an application to the Hartford was first talked of. And Beach evidently understood the clause referred to in Eames's letter of the 25th as referring to the Home insurance negotiation, or he would not have written to Ducat for a ticket. He explains this by saying that he understood the clause as referring to the Hartford application enclosed in the letter, but as also meaning generally that Eames was willing to give six and a half per cent, and, therefore, he sent for the ticket for the Home insurance. This is, in effect, an acknowledgment that he understood it as referring to the one as well as to the other. Taking the evidence all together, we think that Eames's statement is correct,-that he did receive the letter which he says he did on the 22d; and that his own letter of the 25th was in answer to it. The form of language used by him, 'I guess we will have to stand it,' is not so ambiguous and uncertain as the appellees' counsel suppose. It is a form of expression often used in common speech, in this country, to indicate an affirmative statement. I was so understood and acted on by Mr. Beach. It is equivalent to saying, 'We will take the insurance at that rate.' And Ducat evidently understood the negotiation as closed, because he was on the point of sending the ticket when he received the telegram announcing the fire.

Supposing this to be the meaning of the correspondence, the next question is, whether it had the effect of creating a contract. Eames had put in an application for insurance. It was made out in the regular form. The property was fully described, the amount of insurance was named, and the rate of premium at five and a half per cent was proposed to be paid. Every thing was satisfactory to the general agent, except the rate of premium. No question was made about any thing else. The whole subsequent correspondence related to that alone. The agent required six and a half per cent instead of five and a half; and finally, as we construe the letter of Eames, he (Eames) agreed to and accepted this modification. Supposing all the parties to be acting in good faith, as they were bound to act, had he not a right to suppose that the agreement was concluded, and that the risk was taken by the defendant? We do not well see how this conclusion can be avoided. He had not paid the premium, it is true; but it is shown that this was not required until the policy was made out and delivered. It had not been required of Cooley in 1870; and yet the policy in that case, when issued, was made to run from the date of the application, some two weeks prior to its issue, and, of course, covered the risk during that antecedent period.

If parties could not be made secure until all the formal documents were executed and delivered, especially where the insuring company is situated in a different State, the beneficial effect of this benign contract of insurance would often be defeated and rendered unavailable. As said by Mr. Justice Field in the case of The Insurance Company v. Colt, 20 Wall. 567, 'It would be impracticable [for a company] to carry on its business in other cities and States, or at least the business would be attended with great embarrassment and inconvenience, if such preliminary arrangements required for their validity and efficacy the formalities essential to the executed contract. The law,' he continues, 'distinguishes between the preliminary contract to make insurance or issue a policy, and the executed contract or policy. And we are not aware that in any case, either by usage or the by-law of any company, or by any judicial decision, it has ever been held essential to the validity of these initial contracts that they should be attested by the officers and seal of the company. Any usage or decision to that effect would break up or greatly impair the business of insurance as transacted by agents of insurance companies.'

But it is objected, in the next place, that the contract, if one was made, was not complete and precise in its terms; that it did not state the period of time during which the risk was to continue, and did not state what kind of a policy (of two or three different kinds which the Home Company used) Eames wished to have. It does appear that the application, which was signed on the 12th of October, did not (as usually done) call for a statement of the period of insurance. It was one of the company's own printed blanks, and the probability is, that the reason this item was not inserted was the almost universal practice of taking ordinary insurance against fire for a year. Nothing else seems to have been in the minds of the parties. The former insurance on the property had been for that period. The bill states that Eames applied to Beach for a contract of insurance and policy on the mill for a year; and this is not denied in the ans er: the application to the other companies, the Phoenix and the Hartford, seem to have been for a year. Mr. Beach, in his testimony, when asked by the counsel of defendant whether any thing had been said as to the length of time the complainants wanted insurance in the Home, promptly answered, 'If I mistake not, the application states 'for one year;" and was only convinced to the contrary after an inspection of the document. The premium is constantly spoken of by the witnesses and in the letters as so much per cent absolutely,-six and a half per cent,-without adding 'per annum;' and yet we know that a year's premium was meant. It may be said that this is the usual mode of speaking when rate per annum is intended. This is undoubtedly true when an ordinary policy for a year is the subject of discussion. But when insurance for a fractional part of a year, or any unusual period, is proposed or spoken of, it is not the customary mode of speaking. It is then usual to add the words 'per annum,' in order to avoid mistake. We think it perfectly manifest, from all the evidence taken together, that the parties meant and intended an insurance for a year, and had nothing else in their minds. This is the inference to be drawn from all their conduct, conversations, and correspondence; and we should be sticking in the bark to ignore it.

The plea that no time for the continuance of the insurance was stipulated for is evidently a mere afterthought.

There is no difficulty as to the time when the risk was to commence. It was the practice of the defendant, as it is of most, if not all, other companies, to antedate the policy to the time of making the application; which, in this case, was on the twelfth day of October, 1872. This practice is more beneficial to the companies than to the insured. They are not liable until the contract tract is completed, and if a loss occurs before its completion they have nothing to pay; and yet they get the benefit of the premium for this period whenever the contract is completed.

As to the plea that the contract does not specify what kind of a policy was desired, it does not appear that the complainants had any knowledge or notice that the defendant issued different kinds of policies. As Eames justly said, he supposed (as he had a right to suppose) that they would get the same kind of policy which had been issued on the property before. If no preliminary contract would be valid unless it specified minutely the terms to be contained in the policy to be issued, no such contract could ever be made or would ever be of any use. The very reason for sustaining such contracts is, that the parties may have the benefit of them during that incipient period when the papers are being perfected and transmitted. It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount, and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplate such form of policy, containing such conditions and limitations as are usual in such cases, or have been used before between the parties. This is the sense and reason of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.

As to the objection that the application in this case does not truly set forth the title of the complainants and the amount and nature of the incumbrances on the property, and the amount of insurance in other companies, it is sufficient to say that the evidence abundantly shows that all the facts were fully and frankly communicated to Beach, the agent of the company, and were indeed known to him before; and that he wrote down the answers according to his view of their bearing and legal effect, Eames relying entirely on his experience in such matters. There is no reason to suppose that either Eames or Beach did not act in entire good faith in the transaction. And, indeed, it cannot be pretended that the facts were not substantially as represented in the appl cation. The complainants are represented to be the owners of the property, which is stated to be subject to a mortgage for $6,000. The fact was, that they had purchased the property for $12,000, and had paid $6,200 of the purchase-money, the vendor having a lien for the balance of $5,800; but no deed had ever been given. So that, in truth, the complainants did not hold the legal title, although they had an equitable one; and had not given a mortgage, although the vendor's lien was equivalent to one. In another answer, however, explaining the mortgagee's interest, it is stated expressly to be a 'lien on mill to secure payment of sale.' As the exact facts were communicated to the agent, and he took the responsibility of stating them in the way he did, leading the applicant to suppose that it was all right, we think it would be great injustice to turn him out of court now for this inexact method of statement. According to the views expressed by this court in Insurance Company v. Wilkinson, 13 Wall. 222, and other more recent cases, the defendant was concluded by the act of its agent. The reference to collateral insurances in other companies is subject to the same consideration. The insurances were being applied for through this very agent who wrote the answers, and who knew the whole facts, and between whom and general agent they had been referred to in their correspondence. The defence on this ground is utterly destitute of equitable consideration.

After giving due attention to the pleadings and evidence in this case, we are forced to the conclusion that a contract for a policy of insurance was fairly made, and that a decree should have been rendered for the complainants, declaring them entitled to a policy of insurance to be issued by the defendant, in the usual form in such cases, for $4,000 on the mill and machinery of the complainants, situated at Staunton, in the county of Macoupin, Ill., to run and be in operation for one year from the twelfth day of October, 1872, at the rate of six and a half per cent premium; and, as it appears that the said property was destroyed by fire on the twenty-ninth day of October, 1872, whereby loss and damage accrued to the complainants to the whole amount of the said insurance, and that due proof and notice of such loss was given, and that the premium for said insurance was tendered and refused, it should be further decreed that the defendant pay to the said complainants the said sum of $4,000 (less the amount of premium), with interest and costs. See Taylor v. Merchants' Insurance Co., 9 How. 405; Perkins v. Washington Insurance Co., 4 Cow (N. Y.) 666; Carpenter v. Mutual Safety Insurance Co., Sandf. (N. Y.) Ch. 410.

Decree reversed, and cause remanded with directions to enter a decree in conformity with this opinion, and to take such further proceedings as law and equity may require.


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


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Commissioners of Johnson County v. Thayer

ERROR to the Circuit Court of the United States for the District of Kansas.

This action was commenced by Nathaniel Thayer, F. W. Palfrey, and George W. Weld, to recover the amount due upon interest coupons attached to certain bonds, originally issued, to the amount of $100,000, by the county of Johnson, in the State of Kansas, to the Kansas and Neosho Valley Railroad Company, in payment of a subscription of like amount made by it to the capital stock of that company. The bonds and coupons, although varying in amounts and in the dates of payment of the several coupons, are in the same form. The following is a copy of one of them:--

'No. 1.] UNITED STATES OF AMERICA. [$1,000.

'STATE OF KANSAS.

'Thirty years after date, Johnson County promises to pay to Kansas and Neosho Valley Railroad Company (a corporation organized and created under a general law of the State of Kansas, by virtue of certificate of incorporation, filed and recorded in the office of the § cretary of the State of Kansas, under date of March the 8th, 1865), or bearer, the sum of $1,000, for value received, with interest at the rate of seven per cent per annum, payable semiannually at the Ninth National Bank in the city of New York, from and after the first day of January, 1867.

'By order of the board of county commissioners of the county of Johnson, State of Kansas.

'OLATHE, KANSAS, Sept. 3, 1866.

'D. M. WILLIAMS,

'Chairman Board County Commissioners, Johnson County.

'[L. S.] Attest: F. E. HENDERSON, Clerk.'

'Coupon.

'OLATHE, KANSAS, Sept. 6, 1867.

'Treasurer Johnson County will pay to bearer thirty-five dollars in the city of New York, being semiannual interest due on the first day of January, 1872, on the bond of the county of Johnson, No. 1, to the Kansas and Neosho Valley Railroad Company, issued in pursuance of an order of the county commissioners of said county, dated Sept. 3, 1866.

'D. M. WILLIAMS,

'Chairman Johnson County Commissioners.

'F. E. HENDERSON, County Clerk.'

The bonds are indorsed as follows:--

'I, A. Thoman, auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued; that the signatures thereto are genuine; and that such bond has been duly registered in my office, in accordance with an act of the legislature, entitled 'An act of authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, or other work of internal improvement, and providing for the registration of such bonds, and the repealing of all laws in conflict therewith.' Approved March 2, 1872.

'Witness my hand and official seal this sixteenth day of April, 1872.

'[L. S.] A. THOMAN, Auditor of State.'

The authority to the county to subscribe was conferred by the first section of c. 12 of the laws of Kansas for the year 1865, which is set out in the opinion of the court. The following proposition was submitted to the electors of the county:--

'Whereas, on the fourteenth day of February, A.D. 1865, an act of the legislature of the State of Kansas took effect and became in full force, entitled, 'An Act to authorize counties and cities to issue bonds to railroad companies;' and whereas, by law, the board of county commissioners are authorized to call a special election of the qualified electors of the county, to determine whether the said board of county commissioners shall subscribe, in the name of the county, to any railroad corporation to construct a road into or through the county;

'It is therefore ordered, that a special election of the qualified electors of Johnson County be held at the several voting precincts in said county, on the seventh day of November, 1865; that said election shall, in regard to qualifications of electors, and the manner of receiving votes, and the manner of conducting said election, be according to the laws in force governing elections.

'The question submitted to the qualified electors at said election shall be, whether the board of county commissioners shall be authorized to subscribe capital stock in the name and for the benefit of Johnson County, in the sum of $100,000, to aid in the construction of a railroad commencing at or near the Union Depot, on the south side and near the mouth of the Kansas River, and near Kansas City; thence to Olathe, in Johnson County; thence, in a southerly direction, through said county to the southern boundary of the State of Kansas;

'In case a majority of said electors shall vote for subscription to the capital stock of said railroad, the board of county commissioners shall issue the bonds of said county of Johnson, in such amounts as they may deem best, in payment of said stock: Provided, that no part of said bonds shall be issued until work on the said railroad shall be actually commenced in said county, and then only in pro rata assessments as the work progresses; and provided, further, that the whole f said sum of $100,000 shall be expended within the limits of said county; which said bonds shall bear interest at a rate not exceeding seven per cent per annum, and shall be payable within thirty years.

'The ballots of said election shall be written or printed: 'For subscription to railroad;' 'Against subscription to railroad.' If a majority of all the votes cast at said election be for subscription to railroad, the board of county commissioners shall be authorized to subscribe stock to said railroad in the name and for the benefit of Johnson County, and to issue bonds in the manner heretofore stated. All books shall be kept at the several voting precincts by the judges and clerks of said election, showing the whole number of votes polled for and against said subscription to railroad.

'The votes shall be counted by the judges of said election, and the result proclaimed, and the poll-books signed by the judges and attested by the clerks as nearly in accordance with sects. 18 and 23, p. 459, Stat. of 1862, as may be practicable. After canvassing the votes, the judges shall seal up and return the poll-books to the county clerk on or before the Friday next following said election, and within three days after said election deposit one copy of said poll-books with the township trustee, and shall also preserve the ballots used at said election. Sects. 25 and 26, p. 497, and Code 1862.

'The county clerk and commissioners will meet in Olathe on Friday next following said election, to canvass and declare the result, and make a record thereof.

'Ordered, that the foregoing order and notice be published in the 'Olathe Mirror,' twenty days prior to said election.

'DAVID M. WILLIAMS, Chairman.

'Attest: F. E. HENDERSON, County Clerk.'

A majority of the electors voted at the time named, and in the several precincts of the county, in favor of the subscription; and, on the 3d of September, 1866, the county commissioners made it, and it was accepted by the company.

In April, 1867, a call was made by the board of directors of the company, upon all of their subscribers for stock, for the whole amount unpaid upon their subscriptions.

On the sixth and twenty-seventh days of September, 1867, the county commissioners issued and delivered to the company, in part payment of the county subscription, bonds to the amount of $50,000, which are a part of those in question.

On June 19, 1868, the following contract was entered into between the president of the company and the commissioners of Johnson County, to wit:--

'Know all men by these presents, that we, the Board of County Commissioners of Johnson County, in the State of Kansas, in consideration that the Kansas and Neosho Valley Railroad Company shall construct and put into operation a railroad from a point near Kansas City, Missouri, by way of Olathe, to the southern boundary line of said Johnson County, in the direction of Paola, Kansas, within eight months from this date, and in consideration of one dollar to be paid by said railroad company, we hereby agree and bind ourselves, for and in behalf of said Johnson County, to assign and transfer to said railroad company, or their successors, the $100,000 of stock heretofore voted and subscribed by said Johnson County to the capital stock of said railroad company; and we do further agree, in consideration of the premises aforesaid, to cause to be issued, without delay, the $50,000 of bonds of the said county remaining unissued and unpaid on the $100,000 of stock, so as aforesaid voted and subscribed, and place said $50,000 of bonds in the hands of J. E. Hayes, who shall hold said bonds as the trustee and agent both of said Johnson County and said railroad company, to be delivered by said J. E. Hayes to said railroad company, or their successors, on their constructing and putting in operation said railroad from said point near Kansas City to Olathe: Provided, said railroad shall be constructed and put in operation to Olathe within five months from this date.

'And we further agree, in consideration of the premises aforesaid, that in any election of the stockholders of said railroad company which may be held prior to the transfer of the $100,000 of stock as above provided for, and while said railroad company may be engaged in good faith in performing the conditions upon which such transfer of stock is to be made, that we will cast the votes to which said county may be entitled as a stockholder, in such manner and for such persons as said railroad company, or their successors, may request.

'It is hereby expressly understood, that if said railroad company shall fail to comply with the conditions above mentioned, then this agreement shall be null and void; but, if the said company, or their successors, shall fully comply with all of said conditions, then this agreement shall be binding and in full force.

'Witness our hands at Olathe, this nineteenth day of June, A.D. 1868.

'B. F. HOLLENBACK,

'Chairman Board of County Commissioners.

'JOHN BRADY, Associate Commissioner.'

The county commissioners of Johnson County executed, June 22, 1868, the remaining bonds, to the amount of $50,000, and placed the same 'in escrow' with Josiah E. Hayes, to be delivered to said railroad company, upon its compliance with the terms of this contract.

On Oct. 5, 1868, the county commissioners, at the instance of the president of the railroad company, made the following order extending the time for completion of the road to Olathe:--

'Whereas, by mutual agreement, the commissioners of the county of Johnson have granted to the Kansas and Neosho Railroad Valley Company an extension of time, from the nineteenth day of November next to the fifth day of December next, within which to construct their said road to the town of Olathe, according to the provisions, in other respects, of a resolution, ordinance, or agreement passed or entered into on the nineteenth day of June, A.D. 1868, by the said county commissioners, entitling the said railroad company to the bonds and stock of said county voted and subscribed to said company. It is therefore resolved by the commissioners of Johnson County, that, in the event said railroad company shall so construct to the town of Olathe their said road on or before the fifth day of December, in manner prescribed in the resolution, ordinance, or agreement passed June 19, 1868, the trustee or commissioner named therein shall, and is hereby instructed and empowered to, deliver and assign to said railroad company the said stock and remaining bonds of said county as heretofore authorized and instructed, the same in all respects as though the said road had been constructed to the town of Olathe on or before the nineteenth day of November, 1868.

'B. F. HOLLENBACK, Chairman Board.

'JOHN BRADY.

'K. COATES, President Railroad Co.'The company completed its road according to the terms of the agreement; and, on the fifteenth day of December, 1868, said Hayes delivered to it the remaining bonds. They were signed by said Hollenback as chairman; but in other respects, except as to said date, are similar to the bond, of which a copy is above given.

On or about March 29, 1869, and before the maturity of any of the coupons in suit, the company, having previously changed its corporate name to 'Missouri River, Fort Scott, and Gulf Railroad Company,' executed a mortgage or deed of trust, bearing date Jan. 1, 1868, upon its railroad and other property, including the bonds in question, to the plaintiffs as trustees, to secure the payment of five thousand negotiable bonds, of $1,000 each, bearing the same date as the deed of trust, which the company, before the maturity of any of the coupons now in suit, had issued and transferred, for value, to various persons, by whom they are still held.

Immediately after the execution of the deed, the company delivered the county bonds in question to the plaintiffs, who have ever since held them.

All of the coupons for interest that matured prior to those in suit were regularly paid by the county with funds raised by the levy and collection of a tax for that purpose.

Thayer, one of the plaintiffs, had notice of all the facts connected with the issue of the county bonds; of the agreement of June 19, 1868; of the assessment of the stock by the company, and of its non-payment; and of the issue of stock as a bonus to the purchasers of the bonds of the railroad company, and of the facts connected with the completion of the road to Olathe: but the other plaintiffs had no such notice, nor had the purchasers of the railroad bonds.

The Curative Act, as it is termed, of Feb. 25, 1868, is set forth in the opinion of the court. The action was tried by the court without a jury, and a special finding of facts made. The court found, as a conclusion of law, that the plaintiffs were entitled to recover the amount of the coupons declard on. Judgment was entered accordingly. The defendants sued out this writ of error.

Mr. Nelson Cobb for the plaintiffs in error.

Mr. Wallace Pratt, contra.

MR. JUSTICE HUNT delivered the opinion of the court.


text: Talk:Commissioners of Johnson County v. Thayer