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Philadelphia Wilmington and Baltimore Railroad Company v. Philadelphia and Havre De Grace Steam Towboat Company/Opinion of the Court

THIS was an appeal from the Circuit Court of the United States for the district of Maryland, sitting in admiralty.

It was a libel filed by one corporation against another corporation in the District Court of Maryland, under the circumstances stated in the opinion of the court. The District Court decreed in favor of the libellants, the appellees, and awarded damages to the amount of $7,000.36. The Circuit Court, on appeal, affirmed the decree, and the railroad company appealed to this court.

It was argued by Mr. Schley and Mr. Donaldson for the appellants, and by Mr. Dobbin for the appellees.

The counsel for the appellants made the following points:1. That the District Court of the United States has no jurisdiction in a case like the present.

The cases show that 'marine torts,' over which courts of admiralty have jurisdiction, are trespasses done and committed on navigable waters, as in the case of a collision between two vessels; and a main ground on which such cases have been put is the power in rem possessed by those courts, but not by courts of common law.

The placing and leaving the pile in the bed of the Susquehanna, and within the body of a county, was a nuisance at common law, and the appellee's remedy was in the State courts, in an action on the case for particular damage caused by that nuisance. Indeed, the ordinary rules of an admiralty court in apportioning damages could not be made applicable to such a case.

The question is not one of mere locality. The subject matter itself is not within the admiralty jurisdiction; and it is believed that none of the decisions of this court have gone to an extent which would include it.

Conkling, 21, 24.

Thomas v. Lane, 2 Sumn., 9, 10.

Cutler v. Rae, 7 How., 737.

Schooner Tilton, 5 Mason, 465.

Waring v. Clark, 5 How., 467.

Angell on Tide Waters, 113.

Hancock v. York N. and B. R. W. Co., 70 E. C. L. Rep., 347.

Abbott on Shipping, 233.

9 Stat. at Large, 1851.

2. That the appellees could not recover in this case, because they were engaged in an unlawful act at the time when the accident occurred, which caused the injury complained of. The steamer Superior left her wharf at Havre de Grace, with a fleet of canal boats, on Sunday, the 11th May, 1856, and while engaged in towing the boats down the Susquehanna on that day, struck the pile which disabled her.

It is the law of Maryland, that no person whatever shall work or do any bodily labor, or willingly suffer any of his servants to do any manner of work or labor, on the Lord's day, works of necessity and charity excepted; and a penalty is prescribed for the breach of the law.

There is nothing in this provision inconsistent with any of the laws of the United States regulating commerce, and the Federal courts would therefore take notice of and conform to the law of the State.

Act of Assembly of Md., 1723, c. 16, sec. 10.

Bank of U.S. v. Owens, 2 Pet., 527.

Bosworth v. Inhabitants of Swansea, 10 Metc., 363.

Robeson v. French, 12 Metc., 24.

Phillips v. Innes, 4 Clark and Fin., 234.

Smith on Contracts, 171.

3. That even if the appellees could in the present case recover in admiralty against any party, they still had no cause of action against the appellants; the act of negligence which caused the injury not having been the act of the appellants or of its servants.

The evidence shows that the Superior struck upon a sight-pile driven by the servants of Messrs. Goss, Cooke, & Co., who had contracted for a stipulated compensation to build the piles of the bridge across the Susquehanna.

By the second sentence of the 9th section of that contract, the contractors were 'to furnish (and remove when done with) all scaffolding and piles that may be used while building;' which terms, according to the testimony of engineers and experts, included the sight-piles, which were necessary to the proper construction of the bridge. It was the duty of the contractors to remove these sight-piles when done with; and the act of the contractors, or of their servants, in sawing off those piles below the surface, and leaving them so as to obstruct the navigation, was in no sense the act of the appellant.

There is nothing to show that the appellant ever had knowledge of the fact that these piles were sawed off, instead of being removed, as the contract required; and the termination of the contract could not make the appellants liable for the consequences of a previous wrongful act of the contractors, the appellants not consenting either to making or continuing the nuisance.

Allen v. Hayward, 53 E. C. L., 974.

Reedie v. London and N. W. R. W. Co., 4 W., H., and G., 244, 245.

Knight v. Fox, 5 Exch., 721.

Steel v. S. E. R. W. Co., 32 E. C. L., 366.

Overton v. Freeman, 73 E. L. and E. Rep., 866.

Peachey v. Rowland, 13 C. B., 182, (76 E. C. L. Rep.)

Blake v. Ferris, 1 Seld., 48.

Hilliard v. Richardson, 3 Gray, 354.

Rapson v. Cubitt, 9 M. and W., 710.

Milligan v. Wedge, 40 E. C. L., 177.

Burgess v. Gray, 1 C. B., 578, (1 Man., Grang., and Scott.)

4. That the sinking of the Superior after striking upon the sight-pile was owing to the mismanagement of her captain, and the appellees cannot be entitled to recover the damages consequent upon her sinking, for the cost of raising her, or the loss of time while she was under water.

The testimony of a number of steamboat captains, and of persons well acquainted with the river near Havre de Grace, shows that the true course for the captain to have pursued, after the vessel struck, was to run her upon the flats indicated on the illustrative map by the letters C, B, D; and that if he had done so, she would not have sunk.

Even if there was no error in returning to the wharf, the evidence shows great want of care in the omission properly to secure the vessel to the wharf, and in other particulars.

5. That the amount of the decree is greater than the actual loss which naturally or necessarily resulted from the injury; and greater, indeed, than the total value of the injured boat.

Mr. Dobbin, for the appellees, made the following points:

1. That the steamer 'Superior,' the subject of the injury, being, at the time of the wrong committed, a licensed vessel, sailing in her lawful business, on waters within the ebb and flow of the tide, a court of admiralty has jurisdiction to redress any trespass upon her, notwithstanding an action at law might have been maintained for the same injury.

3 Story on Con., 530.

2 Brown's Civil and Ad. Law, 110, 203.

Thomas v. Lane, 2 Sumner, 9.

The Ruckers, 4 Rob. Ad. R., 73.

Steele v. Thatcher, Ware's Rep., 98.

Thackery v. the Farmer, Gilp. R., 529.

Waring v. Clark, 5 How., 464.

New Jersey S. B. Co. v. Merchants' Bank, 6 How., 431, 432.

Manro v. Almieda, 10 Wheat., 473.

Plummer v. Webb, 4 Mason, 383.

Chamberlain v. Chandler, 3 Mason, 242.

Bees Ad. R., 369.

Angell on T. W., 119.

The Volant, 1 W. Robinson, 387.

Zouch, 117, 122.

Com. Dig. 'Admiralty' E., 13.

Sir Leoline Jenkins, 2 Brown's C. and Ad. L., 475.

De Lovio v. Boit, 2 Gall., 437.

Judge Winchester, 1 Pet. Ad. Dec., 234.

2. That the act of Assembly of Maryland did not contemplate a restraint on the sailing of vessels engaged in foreign commerce, or in the coasting trade, and that, if it did, such restraint is repugnant to the Constitution and laws of the United States; and that the 'Superior,' being a vessel duly enrolled and licensed, in the district of Philadelphia, for the coasting trade, had a right to pursue such trade without any restraint thereon by the laws of the State of Maryland, in respect to the time within which such coasting trade might be prosecuted.

Gibbons v. Ogden, 9 Wheat., 240.

Brown v. State of Maryland, 12 Wheat., 448.

Brown v. Jones, 2 Gall., 477.

Willard v. Dorr, 3 Mason, 93.

3. That the railroad company, and not the contractors under them, are responsible for the injury:First-because the whole work was done under the direction and superintendence of the company, the contractors undertaking to do only as directed by the company's engineers; and there being no proof that the contractors violated their instructions, the presumption is that all that was done was by order of the company's superintendent.

Second-because the pile upon which the steamer ran was not such an one as is contemplated by the contract, where it speaks of 'scaffolding and piles that may be used while building,' the proof being that this was one of a group erected away from the line of the bridge, for the exclusive use of the company's engineers employed in performing the duty of superintendence, which the company had reserved to itself.

Third-because, at the time of the accident, the company had discharged the contractors, and taken possession of all that was built of the bridge, in its then unfinished condition; and they are responsible for any damage which might arise from their leaving the work in a position to inflict injury upon vessels navigating the Susquehanna.

4. That the captain of the steamer exercised the utmost prudence, skill, and judgment, after the accident, as the record abundantly shows; but even if this were less apparent as a question of fact, it having undergone full examination in the District Court, and in the Circuit Court on appeal, this court will not disturb the decree, unless in a clear case of mistake.

Walsh v. Rogers, 13 How., 284.

5. That the sum decreed against the appellant is less than the proof shows to have resulted from the injury.

Williamson v. Barrett, 13 How., 110.

Mr. Justice GRIER delivered the opinion of the court.

A brief statement of the facts of this case will be sufficient to show the relevancy of the questions to be decided.

The appellants were authorized by a statute of Maryland to construct a railway bridge over the mouth of the Susquehanna river, at Havre de Grace. They entered into an agreement with certain contractors, to prepare the foundations and erect the piers. In pursuance of their contract, these persons drove piles into the channel of the river, under the direction of the engineers employed by the appellants. Before the completion of the contract, the appellants abandoned their purpose of building the bridge, and discharged the contractors. During the progress of the work, the contractors had driven certain piles, called sight-piles, into the channel of the river, which were not removed or cut off level with the bottom, but were cut a few feet under the surface of the water, so that they became a hidden and dangerons nuisance. The steamboat Superior, engaged in towing boats between Philadelphia and Havre de Grace, left a port in Maryland on Sunday morning, and soon after came into forcible collision with one or more of these piles; in consequence whereof she suffered great damage, and for which this libel was filed.

The appellants have, in this court, insisted chiefly on three points of defence to the charges of the libel:

I. It is contended that the 'marine torts,' over which courts of admiralty have jurisdiction, are trespasses done and committed with force on the sea and navigable waters, such as collision of vessels, assaults, &c., and that the placing and leaving the piles in the bed of the river, and within the body of a county, is a nuisance at common law, and the remedy of the appellees should have been by an action on the case.

The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract; but in torts, it depends entirely on locality. If the wrongs be committed on the high seas, or within the ebb and flow of the tide, it has never been disputed that they come within the jurisdiction of that court. Even Lord Coke (4 Inst., 134) declares, 'that of contracts, pleas, and querels, made upon the sea or any part thereof, which is not within any county, the admiral hath and ought to have jurisdiction.'

Since the case of Waring v. Clark, (5 How., 464,) the exception of infra corpus comitatus is no longer allowed to prevail. In such cases, the party may have his remedy either in the common-law courts or in the admiralty. Nor is the definition of the term 'torts,' when used in reference to admiralty jurisdiction, confined to wrongs or injuries committed by direct force. It includes, also, wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case. It is a rule of maritime law, from the earliest times, 'that if a ship run foul of an anchor left without a buoy, the person who placed it there shall respond in damages.' (See Emerigon, vol. 1, page 417; Consulat de la Mer., chap. 243; and Cleirac, 70.)

In the resolution of the twelve judges, in 1632, it was determined in England, 'that the courts of admiralty may inquire of and redress all annoyances and obstructions that are or may be any impediment to navigation, & c., and injuries done there which concern navigation on the sea.'

Hence, 'the impinging on an anchor or other injurious impediment negligently left in the way,' has always been considered as coming within the category of maritime torts, having their remedy in the courts of admiralty. (See 2 Brown Civ. and Adm., 203.)

The objection to the jurisdiction of the court is therefore not sustained.

II. The testimony showed that the injury to the steamer was caused by her coming in contact with one of the sightpiles, driven into the channel by the contractors, and left in the situation already stated.

This contract is set forth at length. It showed that the contractors were bound to 'provide all necessary machinery, &c., and to furnish (and remove, when done with) all scaffolding and piles that may be used while building.'

It is contended by the appellants that they are not liable for the negligence which caused this injury, because the piles were not placed in the channel by their servants, but by those of the contractors; and that the case was not altered by the fact that the contractors were directed to do so by the engineers, who were the servants of appellants.

If the contractors had proceeded to complete their contract, and left the piles in the condition complained of, this defence to the action might have availed the appellants. But as the driving the piles for the legitimate purpose of the erection was by authority of the law and in pursuance of the contract, the contractors had done no wrong in placing them there. The nuisance was the result of the negligence in cutting off the piles, not at the bottom of the river, but a few feet under the surface of the water. This the contractors were bound to do, after the piles had served their legitimate purpose in the construction of the bridge, and after they had completed their contract. But before this, the railroad company determined to discontinue the erection of the bridge. They dismissed the contractors from the further fulfilment of their contract. Under such circumstances, it became the duty of the appellants to take care that all the obstructions to the navigation, which had been placed in the channel by their orders, and for the purpose of their intended erection, should be removed. The nuisance which resulted from leaving the piles in this dangerous condition was the consequence of their own negligence or that of their servants, and not of the contractors.

III. The appellants urge, as a further ground of defence, that this collision took place on Sunday, shortly after the steamboat had commenced her voyage from a wharf, 'parcel of the territory of Harford county, in the State of Maryland; that the boat was used and employed by her owners in towing canal boats; and that, when entering on her voyage, those who had her control and management were engaged in their usual and ordinary work and labor-the same not being a work of necessity or charity-contrary to the laws of the State of Maryland.'

A statute of Maryland forbids persons 'to work or do any bodily labor, or to willingly suffer any of their servants to do any manner of work or labor, on the Lord's day-works of necessity and charity excepted;' and a penalty is prescribed for a breach of the law.

It has been urged, that there was nothing in this provision inconsistent with any of the laws regulating commerce, and that the Federal courts should therefore take notice of and conform to the laws of the State.

But assuming this proposition to be true, the inference from it will not follow as a egitimate conclusion; for, if we admit that the master and mariner of a ship or teamboat are liable to the penalty of the act for commencing their voyage from a port in Maryland on Sunday, it by no means follows that the appellants can protect themselves from responding to the owners of the vessel for the damages suffered in consequence of the nuisance.

The law relating to the observance of Sunday defines a duty of a citizen to the State, and to the State only. For a breach of this duty he is liable to the fine or penalty imposed by the statute, and nothing more. Courts of justice have no power to add to this penalty the loss of a ship, by the tortious conduct of another, against whom the owner has committed no offence. It is true, that in England, after the statute of 29, ch. 2d, forbidding labor on the Lord's day, they have, by a course of decision perhaps too obsequiously followed in this country, undertaken to add to the penalty, by declaring void contracts made on that day; but this was only in case of executory contracts, which the courts were invoked to execute. It is true, that cases may be found in the State of Massachusetts, (see 10 Metcalf, 363, and 4 Cushing, 322,) which, on a superficial view, might seem to favor this doctrine of set-off in cases of tort. But those decisions depend on the peculiar legislation and customs of that State, more than on any general principles of justice or law. (See the case of Woodman v. Hubbard, 5 Foster, 67.)

We would refer, also, to a case very similar in its circumstances to the present, in the Supreme Court of Pennsylvania, in which this subject is very fully examined by the learned chief justice of that court; and we concur in his conclusion: 'That we should work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he too is a public offender.' (See Mohney v. Cook, 26 Penn. Reps., 342.)

We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of seven thousand dollars on the libellants, by way of set-off, because their servants may have been subject to a penalty of twenty shillings each for breach of the statute.

Moreover, the steamboat in this case was sailing on a public river, within the ebb and flow of the tide; she had a coasting license, and was proceeding from a port in one State to a port in another. Has it ever been decided that a vessel leaving a port on Sunday infringes the State laws with regard to the observance of that day?

We have shown, in an opinion delivered at this term, that in other Christian countries, where the observance of Sundays and other holidays is enforced by both Church and State, the sailing of vessels engaged in commerce, and even their lading and unlading, were classed among the works of necessity, which are excepted from the operation of such laws. This may be said to be confirmed by the usage of all nations, so far, at least, as it concerns commencing a voyage on that day. Vessels engaged in commerce on the sea must take the advantage of favorable winds and weather; and it is well known that sailors (for peculiar reasons of their own) give a preference to that day of the week over all others for commencing a voyage.

In the case of Ulary v. the Washington, (Crabbe, 208,) where a sailor justified his departure from a ship in port, because he was compelled to work on Sunday, Judge Hopkinson decided, 'that, by the maritime law, sailors could not refuse to work on Sunday the nature of the service requires that they should do so.'

We have thus disposed of the questions of law raised in this case, and concur with the District and Circuit Court in their decision of them.

Some objections have been urged to the assessment of damages, and their amount.

On this subject there was much contradictory testimony, as usually happens when experts are examined as to matters of professional opinion. The judges of the courts where this question was tried can better judge of the relative value of such conflicting testimony, from their knowledge of places and persons, and they may examine witnesses ore tenus, if they see fit.

There was evidence to support the decree; and we can see no manifest error into which the court below has fallen. Appellants ought not to expect that this court will reverse a decree, merely upon a doubt created by conflicting testimony.

The judgment of the Circuit Court is affirmed, with costs.


text: Talk:Philadelphia Wilmington and Baltimore Railroad Company v. Philadelphia and Havre De Grace Steam Towboat Company/Opinion of the Court

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1910

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1911

 clx INDEX. · W",,,,, ItwHota ~;.lVtaaA., l'a&e. appropdr.UoQ lor ~mlng Jand8 In; baIaDae~________ 214 defioleD~:!~_01:21, 25 September 2010 (UTC) 902 8um' au'horiHd lor oolDpleti..' read· ~ ~11' ooDltrueted by . WhatOoJD Cofun,____________ ~ 366 malnteD&noe by State or Coon'" ~uhed-.~."'·-,,--- 366 Lunacv W"",. D. C., . . appropriatIOn ftlr '. upenaee of _e- ou~-~ 671, 1287 deficiency appropriation far expe_ of uecuUnI-_" _______ ______ 9, Stl, 1630 L_IIIhrr,- .' .- . . appropiiatlon for miniater to_______ 6S,1096 Lpc/I11urg~,·Yo., . . ap • D tor publio buDdi... _ 921,1043 d oi8Doy appropriation ;for publio bUIlding at__________. . . ; _________ 921 LpcAt RiHr, S; C., preliminary examination for flood COD- trolof_______________________ 1164 M. MCCOM covmll~" may brid«e uri River, at Glasgow_ 111 McGr." .. P4f'i7I. .,. b,idte authorized aei'o8a Wabash River, . at________.___________________ 480 locatioD of bridp acrou Wabash River at, chanKec1. to New Harmony, . Ind., &Dd~te COunty,IU.. 1406 McK_ Coum71 Po.., time exteD.ded for bridabuE ADegheny Nvu, at Eldred,by:-- 769 McKee, H. L.&. • may bridgeJAkB Sabine, at Port .ArthUr, Tex________ ________________ __ GOO time extended for bridging Lake Sabine, at Pl}rt ArthW', .Tex., by_______ 1524 McK.. RocA, Po., deficiency: appropriation for public . bWldiDg aL _______________ ~__ 33 bridge authorfied ~ Ohio River, at_ 11'12 McKee8pori, Pa. time erleDde'd for bridging Mononga- hela River, at_________________ 387 McKinlq High SchOol, D.C., portion of Bite of, and LangIer Jilnlor HiJlh.~.avaUable for bathing pooL 583 McKinlq, Wiuiam B., late G StlMtOr, deficiencr appropriation for pay to Widow 0'- ____ ____ ____ ____ ____ 2 McMi",mnae, Ten",., appropriation for publio building______ 1043 defioiency appropriation for publio McNeil I,::,n.:!h~;-.:.-;.-~-- 922 applOpriatioD for panitentiary, mainte- nanoe______________________ 82,1113 for penitentiary, eonstruol.ion equip- ment, etc __________________ 82, 1113 for auditorium____________________ 1113 defieieno;' appropriation for peniten- tiaryt.maintenan08-- 22,906, 1646 for extenaing water system_________ 22 credit to 'warden of, for paym1!n\ on additional boiler, penitentiary, directed____ _______________ __ _ 22 lofcPhdridg., POTU M., quitclaim to, for land in California____ 1157 Mtu:1c. lnghGmG., Paae. def\oleJloy appropriation tor aervfCflll___ 1607 Mac1ciflGe A,enq, MicI& •• . appropriation fOr support, etc., of Indiana at ________________ 222, 1583 Maddm Dcaa, lie., P __. ., . CaflGl, dam eto., &01'018' Chapa River, at Alhaiuela, deeipated, in honor of Hon. M .rtin B. Madden, lormerohainnan ofHouse Appro- priatiODB COmmittee__________ 1386 Maddm, Marti. B., lGt. 0 RepruentcUlIC i1~ Congru., deficieac1 appropriation'for pay to widowof_____________________ 884 M addefl, WiIio.., . deficienoy appropriation for extra. aervicea_________________ 4, 886, 1624 .. Madeleine," Fren.cA. St./lG".."ip, deficiency appropnatlon for payment to \ France for dam.s to_________ 913 payment directed to Franoe, .. indem- nity for oollision damapa of, with American steamahip "Derwood" 512 Madi_ Bridle ComIRtn7l, may br:r__TarmstroBot (talk) __ _ ~,___TarmstroBot (talk)_n: 133 Madi8an Count", Miu., bridp authoriaed aeroB8 Pearl River, In Rankin County and_________ 421 Madi_, lu., bridge authorbed across Ohio River, at_ 133 M adi81m PfaCtJ Anaez, T~ Deport- fltam, appropriation for operating force_"_ 163, 1029 for operating 8Xpenaetl __________ 164, 1029 for r8paira and preeervatioD. _ __ _ _ 183, 1045 for meobaDieal equipmen~ ______ 183, 1046 Madi8tm Strut NW., D. C., appropriation lor paving, etc., Seventh to Nintb Streets; from guoline tax fund_____________________ .652 Madillcm. Wia., deficiency appropriation for public M agee, J>ill.~ti;G-&p;;.i;;i; . Congrtl88, deficiency appropriation for pay to, widow of____________________ _ 33 3 M agndic Obatlt1latiota8, appropriation for oontinuing, under COaat Survey_______________ 97,1127 MahOM B~ ComP.tJny, J. K . may bridge Ohio River, at Wellsburg, W. Va.______________________ 503 time extended for bridging Ohio River, at Welisburg, W. Va., by______ 1530 M ahani,.. Coumy, OhIO, . may bridge Mahoning River, at Youngs- town, Ohio____________________ 1168 may reoonstructt....etc., bridge across Mahoning .H .iver, at Youngstown_ Ma"-oning Rillet, 62 bridge authorized across, at Warren, Ohio________________________ 309 at Youngstown, Ohio_____ 6&,63, 114, 1168 time extended for bridging, at warren, Ohio ___________________ ._ __ __ 1535 for conatruoting viaduct acrou, at Nilea,Ohio________________ 761,1535 Mail Bags, Locka, Equipment, etc., P08to.l Service, appropriation for purchase, manufac- ture, etc __________________ 192, 1054

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Page:20040823 Jibjab Copyright Scans.pdf/13

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DOWN IN THE SCRUB OAK TIMBER OF THE SOUTHEAST TEXAS GULF THERE USED TO RIDE A BRAKEMAN AND A BRAKEMAN DOUBLE TOUGH HE WORKED THE TOWN OF KILGORE AND LONGVIEW NINE MILES DOWN US TRAVELERS CALLED HIM EAST TEXAS RED THE MEANEST BULL AROUND I RODE BY NIGHT AND BY BROAD DAYLIGHT IN WIND AND SNOW AND SUN I ALWAYS SEEN LITTLE EAST TEXAS RED SPORTING HIS SMOOTH RUNNING GUN THE TALE GOT SWITCHED DOWN THE STEMS AND MAIN AND EVERYBODY SAID THE MEANEST MAN ON THE SHINEY RAILS WAS LITTLE EAST TEXAS RED IT WAS EARLY IN THE MORNING AND ALONG TOWARDS NINE OR TEN A COUPLE OF BOYS ON THE HUNT OF A JOB STOOD IN THE BLIZZARDY WIND HUNGRY AND COLD THEY KNOCKED ON THE DOORS OF THE WORKING FOLKS AROUND FOR A PIECE OF MEAT AND A SPUD OR TWO TO BOIL A STEW AROUND RED HE COME DOWN THE CINDER DUMP AND HE FLAGGED THE NUMBER TWO HE KICKED THEIR BUCKET OVER A BUSH AND HE DUMPED OUT ALL THEIR STEW A TRAVELER SAID MISTER EAST TEXAS RED YOU BETTER GET EVERYTHING FIXED 'CAUSE YOU'RE GONNA RIDE YOUR LITTLE BLACK TRAIN JUST ONE YEAR FROM TODAY RED HE LAUGHED AS HE CLUMB THE BANK AND SWUNG ASIDE OF A WHEELER THE BOYS CAUGHT A TANKER TO SEMINOLE AND WEST TO AMARILLO THEY STRUCK THEM A JOB OF OIL FIELD WORKDAND FOLLOWED A PIPE LINE DOWN IT TOOK THEM LOTS OF PLACES TILL THE YEAR HAD ROLLED AROUND ON ONE COLD AND WINTERY DAY THEY HOOKED THEM A GULF BOUND TRAIN THEY SHIVVERED AND SHOOK WITH DOUGH IN THEIR CLOTHES TO OLD KILGORE AGAIN OVER HILLS OF SAND AND HARD FROZE ROADS WHERE THE COTTON WAGONS ROLL ON PAST THE TOWN OF KILGORE AND ON TO OLD LONGVIEW WITH THEIR WARM SUITS OF CLOTHES AND OVERCOATS THEY WALK INTO A STORE THEY PAY A MAN FOR SOME MEAT AND STUFF TO FIX A STEW ONCE MORE THE TIES THEY WALK BACK PAST THE YARDS TILL THEY COME TO THE SAME OLD SPOT WHERE EAST TEXAS RED JUST A YEAR AGO HAD DUMPED THEIR LAST STEW POT THE SMOKE OF THEIR FIRE WENT HIGHER AND HIGHER A MAN COME DOWN THE LINE HE DUCKED HIS HEAD IN THE BLIZZARDY WIND AND WAVED OLD NUMBER NINE HE WALKED OFF DOWN THE CINDER DUMP TILL HE COME TO THE SAME OLD SPOT AND THERE WAS THE SAME THREE MEN AGAIN AROUND THAT SAME LITTLE POT RED WENT TO HIS KNEES AND HE HOLLERED PLEASE DON'T PULL THAT TRIGGER ON ME I DID NOT GET MY BUSINESS FIXED BUT HE DID NOT GET HIS SAY A GUN WHEELED OUT OF AN OVERCOAT AND IT PLAYED THE OLD ONE TWO AND RED WAS DEAD WHEN THE OTHER TWO MEN SET DOWN TO EAT THEIR STEW


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1912

 INDEX. elm Mail Bag_), Lo,cb, BguiPfMll.l, etc., Postal p .... ~COntfnued. appropriation for materiala, etc., equip- lnentlhop84_4 __ __ _ _ 4 _ _ _ __ 192,1054 for labor in equiplnent ahapa_ _ _ _ 192, 1054 distinctive equipment fOr depart.. mebta, AJa8k&, and ~ poe- aeudODl___________________ 1~, 1055 amount increued for perIOD8l aervices . on, 1928_____________________ 27 Alaa Carih, PriIJaU, . rate of poeUge on, at one cent each_ ___ 940 Mail Tf'CIMporCcJnon, PoatalB.w:., appropriation for atar route. in Alaaka_ 190, 1052 for ateaJnboat and other power boat routea____________________ 190,1052 for railroad routea and ID&il m~n- ger aervice ________________ 190,1052 meSlenger aervice &OOOunting ___ 19O, 1052 for Railway Mail Service _______ 190,1052 for electrie and cable car aervice. 190, 1053 for foreign mailIJ by ateam.ship and otherw1se _________________ 190,1053 aDlounUor aircraft aervice ____ 191,1053 for contract aircraft aervioo4.:. __ _ _ 191, 1053 deficiency appropriation for Marine gUarda for protection of. _ __ __ _ _ 25 for contract air aervice _____ 27,1161,1650 for airplane aervice, New York and San FTan~________________ 43 for meeaen8V iervice______________ 43, 50 for power tioat aervice_ ____________ 50 for railroad routea___________ 60,936,1650 for rural de1ivery4________________ 50 for nar rou~.: ________________ 4_ _ 150 for vehicle aervice_________________ 50 forforeign_· ___________________ 4__ 1650 for Railway Mail Serville__________ 1650 between UDited Stateaand foreign porta required of any steamships at the compensation fixed by law______ 1153 c1eannee to ,be withheld, etc., on refusal-_____________________ 1153 contracta for ten years authorized for tranaporting mails by air to foreign CQuntries_ _____________ 248 service at pound per mile rate; mile rate Iiinited _______ ~ ____ ____ _ _ decision of Postmaster General final_ regulations to be iSSUed4 __________ _ Maine, . bridge authorized acrOSl Saint John 248 248 248 River by Canada and, between Fort Kent, Me., and Clail'll, New Brunswick___________________ 1321 former Act revived________________ .1321 Majority Floor'Lead8r, Home 0/ Repruen- tativu. appropriation for clerka. etc_______ 523, 1393 Malden. Mati •. , deficiency ap~!:ion for site and Mall Par~;:D. ~.: at.____________ 1655 devplopment of public grounds known 88, authorized, by Director of Public Buildings, etc__________ 1696 plans for, adopted_________________ 1696 grounds included; transfer of jurisdfil- ' tion over___________________ __ 1696 Maltby Building, D. C ., appropriation for repairs, etc ______ 526, 1396 Mammoth Cave National Park, Ky., appropriation for administration and development of, by National Park Service ______________ 236,1599 Mammoth Spring" yellotoetont NaWmal P&IIII. Purle, appropriation for trout DUI'Hl'Y at_ ____ 98 M~"", N. H ., approp~iation for pubIiG buDding______ 1M3 deficiency approPriation for public aale au~:= ~4 ~-oiGc;;;.:m:;eiii 922 builclin& alte at_______________ 11M Mangulll, OWc&., . tcrma of court at___________________ 1518 M4fU1JiMd, La., deficiency appropriation for publio MaNi N!=,.:,.;;;U~:--- 1659 exchange of landa authorised with' GWlIliIon-Mayfte1d Land and Gruing Company, for addition to_4________________________ 370 Manu!aclwer_' EI«:Iric Terminal C_ 1'G"y, may biidge Miuouri RiTerl at mouth of Big Blue River 1D Jaebon County, Mo_________________ 384 ManZ4M National Forut N. Ma., exchanf: authori;;i of landa In =~oTarmstroBot (talk) 01:21, 25 September 2010 (UTC)_! 431 Map o/DuJ World, Inler1wJlional, appropriation for share of expeoaee of, oentrUbureauof___________ 75,1107 Mappifl(l A,meiee ' GoNmrilMt .a ervicea 0t.. authorized for furtherance . of MilaiaBippi River, etc., 800d control project_______________ 536 Mapa, fholoaic, . appropriation for engraving and print- in~-- ~ 1595 Mapa, Jlililas'f/, appropriation for topopaphie .urYeya, . etc.,for _______________ 4 __ 342, 1364 aasiatanee of Geological, Coast ,and Geodetic Surveya, etc_________ 342 deficiency appropriation for comp1~ tion ofArmytraDaportationatlu_ 1665 Mapa, PINt' Route, etc., appropriation for manufacture; etc_ 192, 1054 Mapa, United Statu, appropriation for connected; distribu-o, tion________________ ~ __ _ _ _ 202, 1564 for aeparateStateand TerritoriaL 202,1564 designated areas ender enlarged 'homeateadprovtaioDl_ .: .. ___ _ 202, 1564 deficiency appropriation for _______ 4 _'_ 41 March FUld, Cali/., Army Air Corpa, amounts autborized far buildinp, etc., at___________________________ 130 construction of Army buildings author- isedat__ .. -'_' ______________ 748,1303 for Army Air Corps, at____________ 1305 Marcua Hooh, Pa., . appropriation for quarantine atation, repairs and preaervation_______ 183 deficiency appropriation for quarantine station, repairs_______________ 31 Mare lIIland, Cali/., appropriation for, navy yard, public works____________________ 636, 1464 for naval ammunition depot, publio workl_______________________ 636 payment directed to San Franciaco, Napa, and Calistoga Railway for damages to cars of, at navy yard_ 1413 Marianna, Fla., deficiency appropriation f<Jr publio building at ______________ ~ 33

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Dermott v. Jones (64 U.S. 220)

THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia.

It was an action of debt brought by Jones against Ann R. Dermott for the sum of five thousand dollars. The declaration contained four counts, viz:1. That the defendant, on the first day of July, 1852, was indebted to the plaintiff, in the sum of five thousand dollars, for work and labor done and materials furnished to the defendant by plaintiff, and used by her in and about the erection of certain buildings, and finishing and completing certain stores in said buildings, in the city of Washington.

2. For a like sum paid by plaintiff for defendant.

3. For a like sum had and received.

4. For a like sum paid, laid out, and expended by plaintiff, for defendant, and at her request.

The plaintiff below had also filed a bill on the equity side of the court, which was pending; whereupon the defendant moved for a rule upon him to elect between his said action of debt, pending on the common-law side of this court against this defendant, and his said bill pending on the equity side of this court against the said defendant, as to the sum of money, to wit: $14,000, with interest, for which a decree is prayed against said defendant by plaintiff in his said bill.

Whereupon the plaintiff says he elects to recover in this action only the $5,000 mentioned in his said bill in equity, to be paid by defendant on the completion of the said stores and warehouse in said bill mentioned, and claimed on the 1st October, 1851, with interest, and hereby disclaims all and every right or pretension in this cause to recover any portion of said $14,000.

Whereupon the court made the following order, to wit:

The plaintiff having made his election under the said order or rule made at March term, 1854, as aforesaid, to prosecute this action of debt for the recovery of the said sum of $5,000:

It is further ordered by the court, that the said bill in chancery be dismissed, and the same is dismissed accordingly, quoad the said $5,000.

The reporter will not carry the reader through the following process of pleading, the mention of which will be sufficient.

It has been already stated that the declaration contained four counts. The defendant pleaded specially to the declaration setting up the special agreement, &c. Whereupon the plaintiff amended his narr., adding special counts upon the contract. The amended narr. was objected to. Objection overruled, and exception taken. The amended narr. contained the following counts:

1. On the contract alleging performance, and that $5,000 was due, stating the time mentioned in the contract, (1st October,) under a videlicet.

2. Treating the time (1st October) as material, averring that the plaintiff had performed his part, but that the defendant departed from the contract.

3 and 4. The common counts in debt for the extra work.

The pleas were—

To the first count, nil debet, non-performance generally, and non-performance specially, in not completing the stores and warehouse on or before the 1st of October.

To the second, third, and fourth, demurrers.

To the plea of non-performance, in not completing the work on the 1st of October, the plaintiff demurred, and judgment for the demurrer.

Upon the demurrers of the defendant to the second, third, and fourth counts, demurrers overruled, and judgments for the plaintiff.

Verdict for the plaintiff on the first count, and inquisitions, with nominal damages, on the second and third counts, and for the value of the extra work on the fourth count. Judgment accordingly.

From this account of the pleadings, the reader will readily perceive the points of law which came up to this court. But in order to make it more clear, the prayers to the court by the defendant (none being offered by the plaintiff) are inserted. There were five prayers, the only one of which was granted was the fourth. Numbers one and three were granted with a qualification; numbers two and five were refused.

Fourth Prayer. If the jury find, from the evidence aforesaid, that the plaintiff so negligently and unfaithfully executed the work specified in the contract and specifications aforesaid, that, from insufficient drainage, bad workmanship, departure from the written specifications, or other acts or omissions of the plaintiff, in so negligently and unfaithfully executing said work, the three stores and warehouse aforesaid were damaged and injured, as stated in the evidence, then the defendant is entitled to recoup or deduct from the amount claimed in this action all damages sustained by the defendant, and resulting from said injury. Granted.

Fifth Prayer. That, under the issues joined on the first count of the amended declaration, the defendant is entitled to the verdict, unless the jury shall find, from the evidence, that the plaintiff did finish and deliver over to the defendant the three stores and warehouse described in said written contract, ready for use and occupation, on or before the 1st day of October, A. D. 1851. Rejected.

Second Prayer. That, by the true intent and meaning of the written contract and specifications read in evidence, the said Zepheniah Jones undertook and obliged himself to finish the three stores and warehouse therein described, and deliver them over to the defendant, fitting for use and occupation, on or before the 1st day of October, 1851; and the said Jones also undertook and obliged himself to procure and supply all and singular the materials, implements, fixtures, matters and things requisite and proper for the execution of said _____, and for the complete finishing and fitting for use and occupation of said warehouse and stores. And if the jury find that the said warehouse and stores, when delivered over by said Jones to the defendant, were not fitting for use and occupation, but the same were defective, unsafe, and untenantable, by reason of the cracking of parts of the walls and the settlement of portions of the store walls, or otherwise; and if the jury further find that it was possible for said Jones to have constructed said warehouse and stores, and to have delivered the same to the defendant fitting for use and occupation, by his furnishing additional labor, materials, matters and things, (not named in said written specifications,) in and about the fitting of the same for use and occupation, then the said Jones did not perform and discharge the obligation of his said contract, although the jury may believe that the said warehouse and three stores were erected and constructed in strict conformity to the specifications made a part of said contract; and although the cracking of said walls and settlement of said foundations may have resulted from causes wholly unforeseen by either party at the time of executing said contract and constructing said foundations and walls; and although the said cracking and settlement may have been caused by the weight placed on said walls and foundations, or some part thereof, according to the requirements of such specifications, or of additional weight placed on the same or some part thereof by said Jones, at the request of said defendant, and which additional weight was not called for in said specifications; but the court further instructs the jury that the plaintiff is entitled to recover nominal damages at all events. Refused.

DEFENDANT'S FIRST AND THIRD PRAYERS, WITH THE QUALIFICATION.

First Prayer. And thereupon the defendant prayed the court to instruct the jury, as follows:

If the three stores and warehouse in the contract mentioned were not executed and finished, fit for use and occupation, and so delivered to defendant, either on the said 1st day of October, 1851, in the said contract mentioned, nor at any other time, but were, at the time the same were delivered, wholly unfit and unsafe for use and occupation, with walls, or some of them, sunken out of plumb and cracked, and in danger of falling, so as to be utterly untenantable and unfit for use and occupation, then the plaintiff was not entitled to demand and recover in this action the said sum of five thousand dollars, as the stipulated instalment which the said contract purports to make payable on the said 1st October, on the terms and conditions therein mentioned, but the plaintiff is entitled to recover the value of his said work, after deducting the cost and expense incurred by the defendant in repairing said stores and warehouse, and rendering them fit for use and occupation, but the plaintiff is entitled to nominal damages at all events.

Third Prayer. If the defendant did not, at any time or times whatever, execute, finish, ready for use and occupation, and in that state and condition deliver over to the defendant the said stores and warehouse mentioned, but delivered the same over to the defendant in a state wholly unsafe and unfit for use and occupation, and untenantable, with walls sunken, cracked, and out of plumb, and in danger of falling into ruin, whereby the defendant was greatly injured and suffered great loss, by having to reconstruct the said walls in part, and repair the dilapidated condition of the building, and fit it for use and occupation at her own costs and charges, then the defendant may recoup or deduct said losses, costs, and charges, against the plaintiff's claim for the said instalment of five thousand dollars, claimed in this suit, or the value of the work done by said plaintiff in and about said stores and warehouse, but the plaintiff is entitled to recover nominal damages at all events; which instructions the court refused to grant without the following qualification, that is to say:

Qualification. But, if the jury shall find, from the evidence, that the said Jones hath executed the said work according to the specifications forming a part of the said contract, and in a skilful, diligent, and careful and workmanlike manner, or that his execution thereof was with the knowledge and approbation of the defendant, then they are to find for the plaintiff the said sum of $5,000, with interest from the date of the delivery of the said stores and warehouse.

To the granting of which instructions the plaintiff excepts, and prays the court to sign and seal this his bill of exceptions, which is accordingly done, this eleventh day of November, 1857.

JAMES S. MORSELL. [SEAL.]

WILLIAM M. MERRICK. [SEAL.]

To the refusal of which instructions, as prayed by the defendant, to the granting of the qualification annexed thereto, the defendant, by her counsel, excepts, and claims the same benefit of exception as if the refusal of the court to grant each of said instructions as prayed, and the granting of the same with the qualification thereto attached, were each separately excepted to; and thereupon this, her bill of exceptions, is signed, sealed, and enrolled, this eleventh day of November, 1857.

JAMES S. MORSELL. [SEAL.]

WILLIAM M. MERRICK. [SEAL.]

The case was argued by Mr. Brent and Mr. Poe for the plaintiff in error, and by Mr. Bradley and Mr. Carlisle, upon a brief by the latter gentleman and Mr. Badger, for the defendant.

The arguments of the counsel were so interwoven with the dates and facts of the case, that it is thought best to omit them entirely.

Mr. Justice WAYNE delivered the opinion of the court.

title: Dermott v. Jones (64 U.S. 220)


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1913

 INDEX. JI.wu. a- NW., D. C.,. 1'.... appropriation for paving, etc., Eighth to NiDth 8keeU;;trom guoUne tax fund ____________ :. . __ oi_____ W Jim,.. BaM,U•••Hl,.'.... . au~ to attend Confederate VMeI'- .~tionfol'~_______ 483 at O&arfotte..N. C __ __ _ .. _... __ .. ___ _ 1150 appropriation authorized f.· u- . ~add1tionaltomgularpay, etc_________________ _________ 1151 JlGriu'C""" L;. .. . appropriatlon. far officera, acUt. lIBt, pay and aIlowaaa08 _______ . . .. _ 1_ for .......1IC8 allowa.lice .. _.:;.. __ .. 6 38, 1.00 for. _W aIlowanoe_ ..·__ _ _ .: .. .. ... .. .. . ,638, 1486 fo~"""o£,oftite,. OD.mtired. tiat_ ;638, 1486 for JMoY ~ eDlieted.· men. etc_____ .6 38, 1486 IIIIDWanee for 10dsiD8 .and IIUb- . ~noe__________________ N639,1467 fOffttired4lll1ieted·JDen.. __ ;'"- __ _ •· 639, 1467 for.uadrawnelotbio~ ___ .... _. ;. ~ ___ 639,1467 for·01:21, 25 September 2010 (UTC)~_TarmstroBot (talk) 01:21, 25 September 2010 (UTC).1467 for blileep. etc.. to ofticera withoufi Voope,, __ ---... .. ·639, 1467 to eoD8titute one fund________ ~39, 1467 for civU foroe-...... __ .;. __ \._;._ .. ~_ 638, 1m hWllber.. ~ euJj.aed mel\ M' bead- quanel'll not' to be iacre...d; vacanoiet ~ be 61Jed by civil1aJla.. 639, . .,.~ ...... 14.67 for' peeral~___ .. _.... __ .:.. ,; 639, 1467 . forprovieloDe,.etc______________ ,,·639, 1467 for clothing for enUeted men_____ 639, 1467 f~tueIi ••J'" tit oIIoIn____ ,~1467 .. "640, 1468 .forforate, .:. ___ . . ___ . . _____ ;..640, 1468 for OIIIl1IInpR.'apeDI!8L. __ _ _ - ' - ___ ~, 1468 vehiclel, bones, etc__________ 610.1468 funeral ........ ~. officei'll and· enUstedmen______________ 640; 1468 ~.:_ .. .;..• __ .... _.;.... _______ e.o, 1468 .em.ergeDc~ etc___________ ~_ 640, ]468 .' ~ ,"hielea___ . 040, 1468 for c1eri_~....Jield eervioe_ MO,I468 for Marine.COrpa lWIerve______ MO,I468 deficiency. !'Ppropriation. for armed griardIi. for protection of maIlI_ _ 25 for u~ODU'1 fotceI in Nioaragu& andCbina___________________ 25 for pay_________ • __ _ . ; .__ __________ 25, 4..2, 4f. ~. 909, 9M, 1618, 1621, 1671 for pDeral upe___._.. _~ ______ .__ 25, 4..2-k~_~ 9M, 1618, 1621 for ~• .LJePIIC"ment____ 48. 934,1618,1621 for IIllleaae. etc________________ 909, 1649 for proviBlOns_____________________ 909 for clotbfng_ _ _____________ __ _____ 909 for fuel__________________________ 909 fOl' eupplieB, etc_ _______________ __ 909 for ~ repairI_______________ 909 for ~Ianeous supplies and ex- ~--- 909 for ftIIeI'M aUppliea; reappropriation_ 909 for travel allowance, enUeted. men on ~harge____________________ 1649 for pmeralexpeDllll, additional, 1929_ 1649 Marl,.. Corpt-Continued. P..,. deficiency appropriation for PJ'(\Viaionll, . 1929_.:.______________________ ·1649 'f~ olotbin" 1929_________________ 1649 for fuel. 1~_____________ • _______ . 1649 fOl'lupplies,,etc.,I929 _______·___ ___ 1649 for nendtiDL _ .. "xpe1l8e8o 1~9__ 1649 fdr repaira ol'barracks; UI2V________ 1649 for forap, 195_.... ____________ '-___ 1&49 for mleceJlantlOUS SUppUei and ex- for cr:;i':~Jo929_.-~-ii29::: ~= double pension ~wect. for death or die- abilit7 fllCa aviation. duty _ ____ 1'36 members of, diIIcha.rged for fraudulently DUNpreeentfn&..ase onenliating, durinc World War. may be eon- 1Iidered. honorably diecharpd_ _ _ 1084 Jiari,.. Corpe Ellene" appropriatioa for upeDMII_ _ _ _ _ _ _ _ 639, 1467 mil.., to be paid formEll'oBicere of, for travel to their homes, when :re- leaeed from active du'Y. etc.• at other places__________________ 1556 applicable obly to re1euee prior to July 1, 1922__________________ 1556 retainer pay dabu accruin, prior to July 1. 1921. to be filed within one'year______ ~. ______ .________ 1090 no achrant'epayaroent, for perfol1DaDCe of drill-, u.niform cra.tuit,. etc., ac~ subeequent to July 1, 1925, unleae·daim Aled within three yeai'll from the quarter in. which accrued __________ " _ _ __ _ 1090 Iilari,.. H~ (,. olio Public Health Service. Treasury Department). appropriation for Boston. Mall.. 1m.. fOJ: lc:V:!:;~;iDipj.;vTarmstroBot (talk): g for Philadelphia, PL, remodeling, etc__________________________ ISO for San FrancilOo, Oa.lil •• erectioD of general hoa])itaL_____________ 181 for Galveeton, Tex_______________ 1042 for New Orleaua. La, building,- 1043 for San Francisco, Calif., building___ 1044 for repairs and pre8efVation _____ 183, 1045 for mechanical equipment_______ 183,1046 defici~c:r appropriation for Chicago, m., completion_______________ 32,34 for Detroit, Mich., completion______ 82 for maintenance._ __ _ _ __ 1618, 1622, 1654 for Fort Stanton, N. 14ex__________ 1655 Marine &A_. appropriation for reimbureing New York, Massa.chUletts, and Penn- 8ylvaDia, for espeuees of____ 625, 1453 Mari,.. Weather Data, .- appropriation forfumlabing_______ 144,1195 Marinette, Wia., agreement of Willconsln.and Michigan for bridging_MeDommee River, between Menominee, Mich., and. eonsented. to_____________ 300 bridge &'>lthorised act088 Menomine River.at_____________________ 303 Marien County, Tenn.• brid~ authorised 8CfOII Tenneuee River, in_____________________ 417 Marien. I Tid•• appropriation for Volunteer Soldiel'll' Flome ____________________ 361,1384 oonstruetion, etc., of additional h~pita.l cottages______________ 361
 * . &lie' Beuniona.tLittJel\ocik,Arit_ 483

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text: Talk:Dermott v. Jones (64 U.S. 220)

title: Talk:Dermott v. Jones (64 U.S. 220)


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1914

 INDEX; clxili MIJrioft Itld. -Qmttnutwi. hili. MulBr-track &au aU Tat C. Dqot, ~ C~,llL;· alta of, oonveJj:!!'!-CIl1OA1o aod West- ern In. BaUroad Company__ 431 cond1t1o~. __ ~.~_~_______________ · 432 Jlala~JI~· ' brldp authOrbeCt MI'OU lUo 0Nnde, betwMll'BrowMViJIe, Twx., ~ 764 deflOlei~ctC~__TarmstroBot (talk) 01:21, 25 September 2010 (UTC) 1667 ad~= ::OO_-.1i~-iOiii~ 1668 ft::'~_TarmstroBot (talk) 01:21, 25 September 2010 (UTC)_ 1308 M= A. r ., ~::.rorC:t:bur.e- •. men ___________ _ Ai..W "ret, Aril., . coa.ni of'MaJoo ~_______ ;. • 764 24 Malernit" aulf41antr H~ Ad,, , J approP!iatlon (or expllDIM of CbJIdnD'. .. bridp &Ol"O88 BiJni Francfa ru... at, ~__________ ___________ 442 Marblittf, M., F",., ., appropriation for etudy in physlolo81cal uhang., etc., in proceaa of, stbr- &I8,etc___________________ 552,1202 AiGrl:ainf, tIc., ProWnII, appropriation for inve.nIga1;ing domes- tic and foreign _____________ 86,1117 Mar,"", D. C ., appropriation for m81ntellanoe, repairs, etc_______________________ 647, 1264 for Weatem, alteraUona, equipment, etc~_________________________ 647 Ma~ JUoerda, D. C ., . . in Healtb Department w be transferred te euMody of Supreme Court_ ·_ _ 1283 Marllholl ,NId, Kaflll., construcilon for Air CoI'p3 authorised at___________________ 749, 1302, 1304 Marllh,aJ., United Sf.GUItt C01Im, . . appropriation for salaries, fees, etc_ _ 80, 1111'- care of attached ftII81s.. _______ 80, llll deficienoy appropriation for salaries, etc~OO5,-9M,-m;i6i7:i82i: :7t;iila accounta of, w be rendered quarterly to Attorney Oeoeral within 20 days . after 010118 01 quartw__________ 998 dup~eate ~ be kepi; open to pubHo ~t~ 998 no court approval of, lequlred______ 998 Marshfidd, Wis., . deficiency appropriation for public buDdiDg ai______________ ..: _ __ _ 1659 Murti~ J. B., deficleDcy approprlailon for paying ~ claim 0'-_____________ 898 Martin, Rny L., . appointed on Board of Managers of National Home tor Disabled Volunteer 801dier1____________ 1016 Maryland,. construction of bridge aeroas Potomae River, ai Paw PaWl W. Va., by West Virginia and, egalUed____ 1077 may acquire, after completion, bridge acrou Bear Creek, at Lovel Point, Md___________________ 727 Cboptank River, at Cambridge_____ 1313 Patuxent River, at Burch..__ _______ 1490 Potomac River, ai Great PaUI______ 443 Mason Cit1/, IoVJG, deficiency appropriation for public buBdiris at___________________ 1659 M asllae1taseltll, appropriation for reimburaing, for ma- rine ICbool expenses ________ 625,1453 Mallllach-ua Allen", BB., D. C., appropriation for ])&ving, etc., Eight- eenth to Nineteenth Streetaj from gasoline tax fund_ _ _ _ _ ___ 1272 Bureau esecUtiDs..... ___ __ __ _ .1OB. 1138 defi~:!cTarmstroBot (talk) 01:21, 25 September 2010 (UTC)__'~_.· 23 .vau".. RiM> . . bridge authoriaed acrou, in Lueas. ,(}bio--~- 1559 Mazwdl FtItJld, Ala.,· Anial' Air iJor:t-,. amoanta auihorlled fur Cleldpated buDdinp,etc., ~_.._... _______ 130 construoticlA -ahonsea ·of buildiJIM. etc., at__________________ 749,1302 T~.School, Army Air Corp., at.. 1304 Mayaguez,Portp ~ic0t contraci autnonzea for repairing cus;. tomhoU8e, etc., at___________ .. _ 596 Mayji.6lrJ. C ., Kr., prelimin,aryexamlnation for Good eon- ~ol--6.--- 1164 M':'Jai:"lU'::, ai ~, . Ky., and A~, Ohlo_. _____ 304 time ext8niled for.bridsiDg Ohio lUver, M(Jymn1:1r;.:---,..~-~--:-- 1430 bridge authorized aCross Ohio River at____________________ 304, ~ 1696 time esteilded for brldging Ohio RiVer, at, _________ .. ____ ___ _ :.. ___ 1182,1430 MBGt and MM Pr~,, . appropriation tor diifUstng infotJDation of market pric.es, distribution, ete;, of_______________ -- -- ~561, 1212 MBGt Iflllpection, • appropriation for additional expeD.1ell__ 548.1 . 1 erlendl!d to equine meat; labels. etc~requUed~- 548,1198 M tdianictJllSngineeri1l(l, . appropriation forstandardlzing appa- rat~ etc., used in __________ 92,1122 Mecha~Bgiri~ Public Buildiftlll, appropnation or________________ 183,1045 deficiency appropriation fOr__________ 42, . 986,937,1619,1872 Medal t1/ HOMr, COf!f!rellriontJl, awarded Colonel Charlelt A. LindberJ;h, Army Air Corps Reserve, for nonsiop airplane flight, New York w PsriiJ_______________ _ 1 Medallt deficlenEba:ETarmstroBot (talk) 01:21, 25 September 2010 (UTC)i__ TarmstroBot (talk) __TarmstroBot (talk) 01:21, 25 September 2010 (UTC) 16g for Thomaa A. Edison_____________ 1614 to be annually awarded w two pc!fee- men aDd fuemeb, D. C., for OODBPl!lUOUll l181'Vioe, etc________ 1556 Medal., Arm" &n1ic4, authorized w be procured and gratul- toullly famed to per80DII entitled w the following, with ribbons, etc__________________________ 500 Civil War campaign medaL_______ 500

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text:
Dermott v. Jones (64 U.S. 220)/Opinion of the Court

This record shows that the plaintiff and the defendant entered into a building contract, under seal, with specifications annexed, on the 22d April, 1851. It was agreed between them, that Jones, the plaintiff, should do in a good, substantial, and workmanlike manner, the houses, buildings, and work of every sort and kind described in a schedule annexed to the contract, of which it was a part; that he should procure and supply all the materials, implements, and fixtures, requisite for executing the work in all its parts and details; and that the stores fronting on Market Space, and the warehouse on Seventh street, should be finished and ready for use and occupation, and be delivered over to the defendant, on the first day of October after the date of the contract, and all the rest of the work on the first day of December afterward. The defendant agreed, upon her part, to pay the plaintiff for the performance of the work, and for the materials furnished, twenty-four thousand dollars by instalments: five thousand dollars on the first day of July, 1851; five thousand dollars on the first day of October following; it being expressed in their contract, that the stores and warehouse were then to be delivered to the defendant ready for use and occupation; and that the residue of the twenty-four thousand dollars was to be paid to the plaintiff on the first day of January, 1860, with interest upon four thousand of it from the first day of May, 1851, and with interest on ten thousand dollars from the first day of December, 1851. We do not deem it necessary to notice the other covenants of the contract, as they have no bearing upon the case as we shall treat it.

The suit as originally brought is an action of debt for the recovery from the defendant of the second instalment of five thousand dollars, and for the value of certain extra work done and materials furnished by the plaintiff for the defendant's use. The original declaration contains four counts: first, charges the defendant in the sum of five thousand dollars for work and labor done, and materials furnished and used by her in the erection and finishing certain stores and buildings in the city of Washington; second, for a like sum paid by the plaintiff for the defendant; third, for a like sum had and received; and fourth, for a like sum paid, laid out, and expended by the plaintiff for defendant at her request. The defendant pleaded to the declaration four pleas: first, that she was not indebted as alleged; second, a special plea setting out in detail a contract under seal, with the plaintiff, for the erection of such buildings as are mentioned in it, and for the completion of them-protesting that the plaintiff had not complied with the terms of the same, and declaring that the sum of five thousand dollars claimed by the plaintiff was the second instalment, which, by the contract, was to be due and payable to the plaintiff on the first day of October, 1851, and denying that the buildings were done by that day, or that any claim for the five thousand dollars had accrued before the bringing of the suit, by reason of any contract or agreement different from the special contract, or for any consideration other than the five thousand dollars claimed in the declaration. In the third plea, the identity of the sum sued for with the second instalment is reaffirmed, payable on the 1st of October, 1851, upon condition that the buildings and stores should be completed and ready for use by that day-averring performance on her part of the conditions and covenants of the contract, and non-performance on the part of the plaintiff, especially his failure to complete and have ready for use the warehouse and stores by the time specified. The fourth plea refers to the special contract, avers performance on her part, non-performance on the part of the plaintiff, and especially, that he had not finished and completed the buildings and stores by the day specified in the contract, or at any time, either before or after that day. At this point of the pleading the plaintiff applied to be permitted to amend his declaration, and added to it four counts. The first sets out in detail the special contract referred to in the defendant's second, third, and fourth pleas; avers performance generally, on his part, and non-performance on the part of the defendant. The second count is the same as the first, down to the averment of performance by plaintiff inclusive, and then it avers that the defendant departed from the stipulations of the contract, and required the plaintiff to do additional work, and to furnish additional materials, whereby the defendant delayed the plaintiff, and prevented him from completing the buildings by the time agreed, which the plaintiff would otherwise have done. It is then averred that, notwithstanding the additional labor, the plaintiff had completed the work in a reasonable time after the first day of October, 1851, to wit: on the 4th December following, and that the defendant then accepted the same, whereby the second instalment of $5,000 became payable. The third count is substantially a repetition of the original declaration, and the fourth claims $10,000 for work and labor done, and for a like sum laid out by the plaintiff for the defendant, from all of which his right of action had accrued before it was instituted.

The defendant filed three pleas to the first count of the amended declaration: 1st, that she was not indebted as was alleged; 2d, that the plaintiff had not performed the special agreement; and 3d, that he had not performed the condition precedent of the contract, to complete the building, which he had agreed to do by the first day of October, 1851. To the rest of the count the defendant demurred. As the verdict of the jury and the judgment rendered for the plaintiff are upon the first amended count, contrary to instructions asked of the court by the defendant, we shall not notice the subsequent pleadings and proceedings in the case, and will confine ourselves to what we consider to have been the legal rights of the parties under the original declaration and the first amended count. The evidence shows that the three stores and the warehouse were not finished by the 1st of October, 1851. It is also proved that the special contract had been departed from in the course of its execution; that the defendant insisted that alterations and additions should be made in the buildings after they were begun, contrary to the specifications of the special contract, and that the plaintiff had yielded to her requirements. It may have delayed the completion of the stores and warehouse, as it increased the work to be done; but it having been assented to by the plaintiff without any stipulation that the time for performance of the whole was to be delayed, it must be presumed to have been undertaken by the plaintiff to be done, as to time, according to the original contract. The sinking of the wall probably caused the delay, but that cannot give to the plaintiff any exemption from his obligation to finish the stores and warehouse on the 1st of October, without further proof as to the cause it; nor could it in any event entitle him to an instruction from the court that he might recover under a count or a special contract, in which he avers that the work had been completed by him on the 1st of October in conformity with it. The defendant in the court below, plaintiff in error here, to maintain the issues on her part, and to reduce the damages claimed by the plaintiff, introduced witnesses to show that the work, though it had been done, had not been so in a skilful and workmanlike manner, and that the materials used for it were of an inferior kind, especially in the construction of the store wall, and that it was so deficient in other particulars that she had been put to a large expense to make the buildings fit for use and occupation, which amounted to ten thousand dollars. The plaintiff gave rebutting testimony, and then the defendant prayed the court to instruct the jury, 'that if the three stores and warehouse were not finished fit for use and occupation, and delivered to her on the 1st of October, 1851, but were at the time when they were delivered wholly unfit and unsafe for occupation, with the walls of some of them sunken out of plumb, and cracked, and in danger of falling, so as to be utterly untenantable, then the plaintiff was not entitled to demand and recover in this order the said sum of $5,000, as the stipulated instalment which the special contract purports to make payable on the 1st October, 1851, but that the plaintiff was entitled to recover only the value of his work, after deducting the cost and expense incurred by the defendant in repairing the stores and warehouse, to render them fit for occupation, but that the plaintiff, as claimant, was entitled only to nominal damages.

Also, if the defendant did not, at any time whatever, execute and finish, ready for use and occupation, and deliver in that state and condition to the defendant, the stores and warehouse, but had delivered them over to the defendant in a state wholly unsafe and unfit for use, and untenantable, &c., & c., and that the defendant had been obliged to reconstruct the walls, and to refix the buildings, so as to fit them for use and occupation, at her own cost and charges, then that the defendant may recoup or deduct the same against the plaintiff's claim for the said instalment of five thousand dollars claimed in the suit, or the value of the work done by the plaintiff upon the stores and warehouse; but that, in all events, the plaintiff could only recover nominal damages.

These instructions the court refused to give, without the following qualifications:

'If the jury shall find from the evidence that the plaintiff, Jones, has executed the work according to the specifications forming a part of the contract, in a skilful, diligent, and careful and workmanlike manner, and that his performance of it was with the knowledge and approbation of the defendant, then they should find for the plaintiff the said sum of five thousand dollars, with interest from the date of the delivery of the stores and warehouse to the defendant.'

The defendant excepted to the refusal of the instructions as they had been prayed for, and to the qualifications of them as they were given to the jury.

There is error in this instruction. The count and the plea of the defendant, and the instruction asked, raised the construction of the special contract, whether or not the right of the plaintiff to recover the second instalment did not depend upon the completion of the stores and warehouse by the 1st of October, 1851; whether that was not a condition precedent, or a case in which the parties had agreed-one to deliver the buildings finished, according to the special contract, and the other to pay the second instalment concurrently, if they were then so delivered. A failure by the plaintiff to finish and deliver on that day is fatal to a recovery upon the special contract. The plaintiff in the first amended count declares upon it as such, avers his performance accordingly, and the proof is that he had not so performed. We infer, from the whole contract, that it was the intention of the parties that the performance of the work was to be a condition precedent to the payment of the second instalment. There is no word in the contract to make that doubtful.

The plaintiff undertook to furnish the materials and to construct the buildings, according to specifications. Part of them were to be finished, and to be delivered to the defendant, on the 1st of October, 1851, and the residue on the 1st December afterwards. For the whole, the defendant was to pay $24,000-$5,000 on the 1st of July, 1851; $5,000 on the 1st of October, 1851, if the stores and warehouse were then finished for use and occupation, and delivered over on that day to the defendant; and if that was done, then the balance of the $24,000 was to be paid on the 1st of January, 1860, with the interest, as mentioned in the special contract.

The words of the contract for payment are, 'in consideration of the covenants, and their due performance.' Such words import a condition. It is difficult at all times to distinguish whether contracts are dependent or independent; but there are rules collected from judicial decisions, by which it may be determined. We have tested the correctness of them by an examination of several authorities.

'When the agreements go to the whole of the consideration on both sides, the promises are dependent, and one of them is a condition precedent to the other.' Such is the case with the special contract with which we are now dealing. 'If the agreements go to a part only of the consideration on both sides, the promises are so far independent. If money is to be paid on a day certain, in consideration of a thing to be performed at an earlier day, the performance of that thing is a condition precedent to the payment; and if money is to be paid by instalments, some before a thing shall be done and some when it is done, the doing of the thing is not a condition precedent to the former payments, but is so to the latter. And if there be a day for the payment of money, and that comes before the day for the doing of the thing, or before the time when the thing from its nature can be performed, then the payment is obligatory, and an action may be brought for it, independently of the act to be done. Concurrent promises are those where the acts to be performed are simultaneous; and either party may sue the other for a breach of the contract, on showing, either that he was able, ready, and willing to do his act at a proper time and in a proper way, or that he was prevented by the act or default of the other contracting party.' 2 Parsons on Contracts, ch. 3, 189.

The first instalment was to be paid on an appointed day, in consideration of the work to be begun; and the second instalment was to be paid on a subsequent day, if the work should then be finished and delivered over to the defendant, ready and fit for use and occupation. Before that day it could not have been demanded; on that day, the work having been performed, it might have been. The evidence shows that the work had not been done on the 1st of October, 1851, and was not finished until the 1st of December.

The plaintiff avers in his first amended count that he had, on his part, complied with his undertaking in the special contract. The issue upon it is, that he had not done so, and he gave no proof to sustain the averment.

The evidence entitled the defendant to a verdict on that count; but the court, without regard to the time fixed upon for the work to be finished, instructed the jury, that if the work had been done according to the specifications forming a part of the contract, in a skilful and workmanlike manner, or if his execution of it was with the knowledge and approbation of the defendant, then they were to find for the plaintiff the sum of five thousand dollars, with interest from the date of the delivery of the stores and warehouse. It must be obvious that this instruction makes between the parties a different contract from that into which they had entered, and one different from that the plaintiff had declared upon.

The plaintiff gave no evidence to support the count; but there was evidence showing the reverse of performance on his part. For this error in the court's instruction to the jury upon the first amended count, we shall remand the case for another trial upon the plaintiff's original declaration in debt with the common counts, as in indebitatus assumpsit.

We do not consider that the plaintiff's right to recover upon that declaration was in any way affected by the extra work which was done upon the requisition of the defendant, or by the increase of materials which he furnished for that purpose; or that the sinking of the foundation of the buildings excused him from finishing the work by the time specified; or that the acceptance of the buildings by the defendant as they had been constructed by the plaintiff was any release of the plaintiff from his undertaking to finish them in the time specified in the contract. But after that time had passed, the plaintiff continued, with the knowledge and permission of the defendant, and also with the knowledge of her superintending architect, to do the work specified in the contract, and also to do the extra work, and to furnish the materials necessary for both. And when the work was done by the plaintiff, however imperfectly that may have been, the defendant accepted it.

The law in such a case implies, that the work done and the materials furnished were to be paid for. The general rule of law is, that while a special contract remains open-that is, unperformed-the party whose part of it has not been done cannot sue in indebitatus assumpsit to recover a compensation for what he has done, until the whole shall be completed. This principle is affirmed and acted upon in Cutter v. Powell, 6 Term Reports, 320; also in Hulle v. Heightman, 2 East., 245, and in several other cases.

But the exceptions from that rule are in cases in which something has been done under a special contract, but not in strict accordance with that contract. In such a case, the party cannot recover the remuneration stipulated for in the contract, because he has not done that which was to be the consideration of it. Still, if the other party has derived any benefit from the labor done, it would be unjust to allow him to retain that without paying anything. The law, therefore, implies a promise on his part to pay such a remuneration as the benefit conferred is really worth; and to recover it, an action of indebitatus assumpsit is maintainable.

Such is the law now in England and in the United States, notwithstanding many cases are to be found in the reports of both countries at variance with it. It was recognised by this court to be the existing rule in the case of Slater v. Emerson, 19 Howard, 224, 239.

The difference between the rule now and in earlier times, it is believed, has caused much of the difficulty in the establishment of the present rule. Formerly it was held, that whenever anything was done under a special contract not in conformity with it, the party for whom it was done was obliged to pay the stipulated price; but that he might resort to a cross-action, to indemnify himself for the deficiency in the consideration. Blair v. Davis, 1794, cited in 7 East., 470. See Smith's L. Cases, in the notes following the case of Cutter and Powell, 2d vol., for a full description, historical and chronological, of the rule as it now prevails and as it formerly was.

The rule as it now exists has been recently discussed and affirmed in the Queen's Bench, in the case of Munroe v. Phelps and Bell, 8 Ellis and Blackburn, 739; 92 English Common Law.

It has been the rule in the courts of New York for more than thirty years. In the case of Jewell et al. v. Schroepnell, 4 Cowan, 564, it was decided, that if there be a special contract under seal to do work, and it be not done pursuant to the agreement, whether in point of time or in other respects, the party who did the work may recover, upon the common counts in assumpsit, for work and labor done. If, when the time arrives for performance, the party goes on to complete the work, with the knowledge of his employer, it was evidence of a promise to pay for the work. So if the employer does not object.

This rule prevails, also, in Massachusetts, in Pennsylvania, and in several of the other States. Also in Alabama, as may be seen in the case of McVoy v. Wheeler, 6 Porter, 201. It is discussed, with a very accurate discrimination of its application, in the 2d vol. of Professor Parsons upon Contracts.

In the trial of such an action, where the defence is not presented as a matter of set-off, arising on an independent contract, but for the purpose of reducing the plaintiff's damages, because he had not complied with his cross obligations arising on the same contract, the defendant may be allowed a recoupment from the damages claimed by the plaintiff for such loss as she shall have sustained from the negligence of the plaintiff. Such evidence is allowed to prevent circuity of action, and to prevent further litigation upon the same matter. It may be well to say, that the court allowed a recoupment in Green and Biddle, 8 Wheat., 1, to a disseizor, who was a bona fide occupant of land, for the improvement made by him upon it, against the plaintiff's damages. But such recoupment cannot be claimed unless the defendant shall file a definite statement of his claims, with notice of it to the plaintiff, sufficiently in time before the trial term of the case to enable the latter to meet the matter with proof on his side.

We have pursued the case in hand further than may have been necessary; but it was thought best to do so, as the points now here ruled have not before been expressly under the consideration of this court.

The judgment given in the court below is reversed; and we shall order that the case shall be remanded to it, with directions for its trial again, pursuant to our rulings in this opinion.


text: Talk:Dermott v. Jones (64 U.S. 220)/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1915

 Olxiv IXDEX. JI""~ 4r-.r, &mee-ContiQued. authorised to be procured, eta.; Indian , '_paleD1IIIIIdal ___ .. ____ '_____'_ ~:oenP"lcn DIIII4aI,.;_ - - - - - - _ -- 8iluUIh War...rv1oe medaL _______ _ Cut.D ~ medal..-- ___ _ Pada'lUao ~ DMdaL. _ __ _ _ _ . !"b flI ppI ue~ medaL_______ _ ~.~JMdal- ChbiA~ medal..- ________ _ ~ DIeda! _________ _ ,MesIcarleervioeJDeCIU.. __ - .: __ - _- __ _ Medea IIoI'd* '.moe medaL ____ _ ISOO ISOO l500 IiOO aoo ISOO ISOO ISOO 500 500 ISOO ISOO ~me:'=".:=Ut--~ tiOh_.: ___ ..: .. __ .. .:_..:____________ l500 fIIIIU8 DOt precluded JI penon Is not fD, a,r iDdnot die In. U1e .mee... l500 ~ ......., ,wtthoutlault,maybe free :7=tif~b.-mwtarY liOO emnnce_______________________ liOO espeDBI autborUed from Army appro- __ .l,)rlatIoDL____________________ liOO c01llllcClDC Jawa repealed_____________ liOO Medal., <hU,, to be coined and preeented to Colonel Oharleit A. LlrldheI1th, in MID- ,memoration of his aehlevementa_ 490 with suitable deviC811 to be preeented to 'lboaIM A. EdIaon. In reeopi- tfonof ma ~nta_______ 1012 Jledala 0/ HM. etC., A"';'", , unauthor1led manufacture, ~ etc•• ~.UDlawflfl--;.'--- m pUNah....nt fOl' _____ .:_____________ .a7 MeMiGl'. 'H~ &trftt:at, VIImI",' , BUreau, ,, apptopriatlon for benelciariel_____ 1i88,I24a for improviq facllitlea In boBpltaJe_ __ 588, , 1246 fo« additional hoepitel, domicilWy, aDd diapensary facilitles________ 1247 contracts autborUed. ___ 1"________ 1247 deficieocy appropriation for___________ .a, 45, 48, 932, 1673 Jldctil fJftd SwP:ol HU1tw71 0/ 'M World War, 1J~for~etc--- 3lS8 M . C1aaritW D. C., appropriation for care, etc., at deaig~ nated boepltal8 ____________ 674, 1291 de1loieDcyappi'Opi'iation for___________ 1630 Medicallh,... e.-, Artily, rr.ppropriation for eivilian peJ'lOJU1elA,. O1Iloe of ~D General ___ 3 -, 1349 for ~tiDc buIlet.m. prepared by the 8urpOQ. GeDeraL __________ 327,1351 for medical aDd hospital auppliee_ &39, 1362 for moequito deltruetion, C&Dal Zone_ 339, 1362 for veterinary auppliee, etc... ___ ___ 3 39,1362 for preventin4, etc., contagious dis- ....._____________________ 83 ~, 1362 for civilian employ~ Dunes, etc_, 339, 1362 for TarmstroBot (talk) 01:21, 25 September 2010 (UTC)·:-~:-40, 1363 for mJIoellaoeoua eIpeIlIIe8-. ;. ____ 340, 1363 Ole for Medieal aDd Burg;!.!is- tory of War with IY, forbidden __________________ 340, 1363 for hoepital care, Cual Zone prri- IOns ______________________ 340,1363 for Medit'.al Museum ___________ 340,1363 Jledical Departmmt, Armv-Contlnued. p .... appropriation for library, Burgeon Gen- eral'l Office_______________ 340, 1363 for artifiCial, ~:tc-- 367,1379 for = oee for disabled •. ___________ ~-- 367;1379 for t~-- _______ 358,1379 for Medlcalw Suqioal .BiItory of '*'- World War______________ ~ 368 detlo(ency approprWion for ____ ' -\ 936, 1619 for artificial UinbeJ ___________ • __ _ __ 38,60 for ",J)lae1Dg IRlpplles ____________ 49,1619 for I&lariell, 1929, under____________ 1689 officer aaelgned &8 personal phYlioiaD. to the Preefdent allowed tem- ~=.. ~..p._~.=_~__~lTarmstroBot (talk) 670 rank:eto.,to date from AIIi.JIllDent__ 670 Medical mmN, NOJJ1I (• ., . Bureau of . edicine and Surgery, Navy). Medical Ezominer., D. (J'I.Board 0/, recordi, etc., to be aeuvered to Com- mfIIIIion on Licensure to Practice the HealinC Art_______________ 1340 Medical Mv.eeum ArtilY, appropriation 101' preaerving lpeeimens .to___~ ___________________ 340,1363 custody, etc., of, building, t.ran.fened to office Of Publio Bu1Idlnp and Public Parb of National CapitU______________________ 888 Medical 8c1&ool, D. C'J. ArtlllI, completioD of buDam, authoNed. __ _ _ 1303 addition to power plant authorUed.._ 1303 Medical Bv.JHf'rittm,I D. C., Board oj, recordi, etc., to De delivered to Com- million on Licensure to Practice ~eBealing Art.-_____________ 1340 tranafer of money balance to the Com- Drlsdon_____ -____________ 1340 MedidM emil Bu,.,." D. C., licenses_required to practice__________ 1334 Medicine Loafe, KIJf&I., deficiency appropriation for erecting tablet at, to commemorai;e hold- ~7~f_01:21, 25 September 2010 (UTC)_~_TarmstroBot (talk) 01:21, 25 September 2010 (UTC),_~ 902 Bum authorized for tablet at, to com- memorate Indian peace council there, and treatiell made with Kiowa. etc., Indianlln 1867____ 492 MedidflU, AduUeraled, etc., appropriation for expeD8e8 preven~s_ sale, etc., of_______________ 666, 1217 for e~8e8 yreventing sale of, in Districto Columbia_______ 669,1285 MeditefT_. FnAt Fl'l/, etc., appropriaUon for reaearch on______ 568, 1208 Meherri.'lif1ef', _ bridge authorized &Cl'08ll, in Hertford County, N. C________________ 1451 Melllille, La., bridge authorised &C1'OII8 Atchafalaya River, at_____________________ 379 MeZviZU, R. I ., appropriation for naval fuel depot, boilerplant_______________ 636, 1464 Member. of Ctmgrea. oontracte with, fOr acquisition of land for MiIIdaelppi River 1I00d con- trol projecta, prohibited________ 639 Member. 0/ the HOUH oj R,prUllntativu, appropriation for compensation____ 620,1390 for mrnDease 620, 1390 for clerk hire_ _ _ _ _____________ _ 523, 1393

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1916

 INDEX. clxv Memorial, D. C., Pap. erection authorized In Wuhington of r!:01:21, 25 September 2010 (UTC)TarmstroBot (talk)_~_ 1540 M,monal na", 1918,, ' appropriati)n for aidIDg Gnmd Army of the ~bHc in: II8l"'ricIIII at Ax- , lingtonCemeteryj etc., 0J1______ 494 JI,morial DG", 11119, deficiency appropriation for akting Grand Army of She BepGblic in aervlcee at ArliDgtoD Cemetery, etc.,on______________________ 1632 Memorial to Women 0/ 1M Worl4 WIlT, D.C., deficiency ap'propriatioR for additional contribution to_______________ 886 additional appropriation IMlthorbed for erectiDc and equipping_______' _ 250 M~, appropnation for constructingJ" etc., ArlIngtc>D Memorial ,lSridge acro&8 Potomac River______ 575, 1232 deficiency appropriation for, at Fort ~k~, ~ co~ora~ acceaaion of Northwest Ter- ritory_______________________ 887 for tablet, to commemora~ holding Indian peace council, at Medi- cine Lodge, KaDa., in 1867_____ 902 for Mount RusIunore Memorial Com- uUaPon______________________ 1627 TarmstroBot (talk),!,thoil;-w&yne~Foii 1666 Oh io _____ ______ _____ 1666 authorUed, to commemonr.~ the Battle of Fort Fisher, by Wilmington, N. C _____________________;,__ 1066 Battle of Monocacy, Md__________ 1444 commemorate Nancy Hart, in Hart County, <la __________________ 1308 buildin.« to be erected at Fort Lewis i Waah., u., to Major Genera Henry A. Greene_____________ 1154 CongrelJlional committee to attend un- veiling of, to Wilbur and Orville Wright, at Kitty Hawk, N. C_ __ 1020 erection of chapel at Lakewood Naval Air Station, N. J., commemon.- tive of lives 10et in aviation_ _ _ _ 1478 table~J etc., at Medicine ~, AallIJ., to commemorate IndiAn peace council there in 1867_ ___ _ 492 authorized at Lititzl PL, to com- memora~ Amencan IIOIdiers wounded in Battle of Brandy- wine and buried at that place_ _ 718 estabUahmentof, Presidents' plaza and, in Naahville Tenn., to former Presidents Jackaon, Polk, and JohDeon_____________________ 1020 tablet or markerl authorized for Federal soldiers killed at battle of Perry- ville, Ky_____________________ 160 tablet to be erected at Clinton, N. C;, in commemoration of fOl'Uler vice President William Rufus King__ 719 plana, etc., for George Rosera Clark, authorized___________________ 1626 MempAw, ,Tmn., appropriation for public building______ 1043 deficiency appropriation for custom- house, etc., extension ________ 347,922 Mmdon, Utah, lands gn.. ted to, for water supply____ _ 451 Menominee A,Mej/, 'Wit., 1'I0Il. appropriation fqr IItlpport. etc., of In- 'diana&fI__ .. _,.;.,_ .. _____________ 11571 UDftpendeci balaaee available_ _ _ _ 1571 Mmominee It1d"- lUNnHation, Wit., appropriatloa ior Ie.....,. h~ital ad- dltion ______ ~ ___ __ _ ~ __ ._____ _ 1582 for two bridpa on; from tribal funda 1687 deficienC17 apprOpriation for bo8pltai, equipment, 'aDd physician's q~___ _____ ____ _____ ____ 901 fOreA inveRiptiou,etc.,on Indian lee- ervatiou not applicable to__ 207, 1670 Jll1IOfiainee IndiG.., Wit.. appropriaUc;Jn for Jncb.Wtdal uslatanoe, eto.;fmm tribal funda_________ ,208 for Ct.:;_TarmstroBot (talk)___ 226 deficiency appropriation. for per capita payments to, from tribal funda_ 1642 M mmllinee, Mid&. agreement of Michigan and Wiloonsin for bridling Menominee River, between MadnetU, Wis., and, OOD88Dteci to_________________ 300 Menominee RiM' agreement ofWieoonain and Micllipn for bridging, between Marinette, Wis., and Menominee, Mich., coD88ntedto_________________ 300 bridge authorised aeroa, at Marinette, lVis_________________________ 303 MmtaUy AJIlWlel. World WIIf' VeIenmI, additIOnal hoepital., domicillu-y and out-patient dlapensary tacilitiea to be provided for, in Veterans' Bureau hoapitala______________ 715 M ercho-M rial CorporaliM (...cUeo UDited State. Shipping Board), appropriation for expenaeaoL_____ 586, 1244 for operatiDg shipe fot carrying coal to fOJeign porill_________ ~ __ 686, 1244 for operatiDg shipe taken back from purcbMen________________ 686, 1244 for reoonditioning "Mount Vemon" , and" Monticello" _____________ 586 Mercham Mon,.. Ad, 1910 (lei Glao Merchant Marine Act, 1928), construction loan fund proviliOllll of, amoendedL: ____________ A ______ 690 during period of ~n yean from June 6, 1920, proceeda from I81e of doo- umented veael built prior to Janoory 1, 1914, exempt from income tax___________________ 881 if prooeeda inv~ in buildin new ahipa in Ame~&I1I1hip= baala of new lbipa. _____________ _ marineinaurancepl'9*OlI8of, modified_ requiremeDt of, for ahipping foreicn 881 881 697 maila on, modified_ _ __________ 696 allowance of raMB for, repealed_ _ ___ 696 Merchant Manne Ad, 1918, deficiency appropriation for foreiBn ~ tranaportation under pro- V18lona of____________________ 910 policy of former Act, for development of merchant marine; etc., oOnfirmed 689 sales of &r.!;' Board veeael8, only for b. up an ad~uate mer- chant marine_________________ 690 vessels owned by United States to be remodeled, etc., for foreign trade 690 documenting of, under United States laws_________________________ 690

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1917

 elxvi INDEX. Miil'elaatIC MB'I'iM Ad. 19.a. . .. .. .ccmtiDued. PNI'. recomm~tMJu' to CoJlll'la for .... placement ~ uP-toodate. v..-. to:r h fnforeign trade_~_.,,.__ .. __ ,, _,, .~ _ ~_ _ _______ 680 to-lle~ u UliltecUJtaielarib ~bJeuae. for naval ormllltary , , ~t:..:.;_.:.......: __ .;.~l.~_:"_ 690 co~ loail fund· to ba.. -t uide. · . -dMVeIAIIII from .u.i;4Itc_ _ 690 to agrepte '125,ooo,OOO.:~ .. :.~:.._~__ 690 loaaa f!OlD. 'to. clthleu lor, lIb.p eOn...
 * ~_'Uaatted8&MMOl'beat

typeL~uipmelit.. ;;11e1eto. ...;.",.'- __ __ 100 ooUl"1DID~""cf ..... : . .. ~. builti 'Wffh; bad en- . gInee.; 'fINU'b1ner,y. aildoollllller-'. .teeO~_~"!iC~.~i.-.-:Priv~-ar 691 navy yMde..: ._ :. ._ ._ ._ . _______ ~_ _ 691 term "veu:ebI" construed..tO.be oue . aided·by__ .:_:..~;. _____ __ .. __ _ ~ .. _ - 691 tc .,. docuiDeated for 20 yeara'Un- del' UJiftedBta_ laws. etc_____ 691 time limit for loua from;:lD8t8llmen1i pa~ents 691 repa1JllfinUa fUU ...ed"______ 691 in~rat6 on leaDS; wbJlebl aeast- wiie m.de-or tDiaCti\'8;'in foreign t~_______ ~ _____ .: ___ .______ 691 Umit'ef1oIi.as _____,.! __ .. ____ ~_______ 691 security for completion of CODdruc- tioD and tepaymeot of Ioana___ 691 prefetted ~OD va.el when OGiIlpletecL.: • ..l.;.. .:;;. ___ • _____ ~__ 691 additiOnal covenaDta to be' pre- acnDed_____. .: ___ _,_ __ __ ___ __ __ 691 wunmoe required apinR all iIl- lurable"'; pJaDiWll agree- ment., *'___ ..i._ __ __ __ __ __ __ _ 692 prior loana to remaia in force ______ . 692 ir.dditiooal appropriatiea of 1160,000,- 000, aut~ for credit to____ 692 DO further credit. to be DUIde__ _____ 692 to oontia1l8'. JeYolvtq.fundj repay- mellt. to beoreditecl thereto; in- ~ecJftlI8d iato the TJeuury _ 692 ocean maillerrioe provilioDa_______ 692-696 insuranoefuDd ~ for u.uranoe of Govermoent mtereat in vNlels, . ~t ., etc___________________ 697 erlent CJf bateJIst .-ted___________ 697 Go~ o8ieiaIa to we American .A Upe wbea Uaveling oveneu on ol6cUYbuaUu.a_ __ ___ __ ___ __ __ 697 if U1IiDC foJeip shipe, proof of __ m'yreq __________ ~_____ 697 neceaary appropriationa autboriHd for proviliODll oUbis Act-. _ __ ____ _ 697 vesae1lj wbleb may be taken for oational defeJl8e _____________________ _ under COIltractfrom loan fund ____ _ under ocean-mail contract________ _ compensation, if bought__________ _ UI8d, but not purcbuecL _______ _ 697 697 687 697 697 roo co~ueDtial damalP'" to be paMt_________________________ 697 certiflcation of. fair, to CongI'8811 by the President_________________ 698 suit allowed if amount UDAtilfac- tory_________________________ 698 meaning of "foreign tnde" .. UlIeCl in thi. Act _________________ . __ _ 698 JI"claam MariM /.IDS8-Continued. p .... loading 01' unla.amg at a port in any territory, deemed fozeign trade, if an intermediate in • foreign voyage______________________ 698 poliCY /;:':'::l7t TarmstroBot (talk) 698 cllocat.iOD 01 .hip operations among various porta_________________ 698 title..ot tAet_.:..:. :.. _____ .:______ ______ __ 698 adcl1tioDalloaM from conatru~lon loan . fud" autborized__ ___ __ _______ 889 JI.~'" :y",,,,-~ Shipping). Meridum Bi'ltiltJ1k. D. C.• ap~tion for improvement. etc_ 679, 1295 Men . ·I..ftDUNatior&al Mcmu7llt1l' • appropriation for .uperintendent___ 357.1378 M~JoIMC~ - appoiDt.ed aa .. Resent of Smithsonian Institution______ ________ ____ _ 2 Merrill, ho,u, B~ may conatru'" fNa footbridge aorOIS Fox River, near Algonquin, IlL_ 383 Merryville, L4., bridp autborized acroa Sabine River. .t__________ ~________________ 387 Mesa V"de Naticmc.l Park, Colo., appropriation far coonmtisaioner_______ 1110 for adItllniatIatio:b:'tc-~.-- 234, 1597 acceptance of- ex ve jurisdiction o,..... of.cededbyCOlorado__ 458 rights reserved to the State_ _ ______ 458 application of United &ate.1aWII_ __ 459 extnidWon offqWvedrom juatioe_ _ 459 aeipeel to Colorado judicialc:Umict_ 459 pUD1ab __ of ~..... . .- mat &ate ~._._____________________ 459 proh1b1;a01:22, 25 September 2010 (UTC)~ 459 TarmstroBot (talk)-:: :g~ pUDJeb......Ipedl_ -riDIatioDl of pro.wa........-...... __ uh__ 459 addltkmal.faulo""lDCndDa,etc_ 460 forfeiture of ~ .....,.. .lUeplly UIUdL________________________ 460 comml""aoel' of dJabtct court to be ap- pointed lor juriadloUon in:. _ __ _ 460 judieial powers of. in vioiatioDII of rules, etc..____________________ 460 appeaIa to diatrict court _ _ _ _ __ __ _ 460 procedure In criminal case8; balL _ 460 service of proee. by ma.rahal for ~e ~ct______________________ 460 summary arreata, if taken in act of pay TarmstroBot (talk)::-req~ire~i;-diBPWl 461 of fees, etc___________________ 461 payment, etc., of United States fees, etc__________________________ 461 deposit of fines and costa with clerk of district court_______________ 461 acceptance of cesaion________________ 461 Mescalero Agency, N. Mex., appr<Jp!iation for support, etc., of Indianaat ___________ 223, 1571, 1584 Mucalero 1Mia" Boapital, N. Me., appropriatloll forflupport, etc., of__ 221 .1581 Macalero Indian Re&Bn1Gtion, N. Mex., appropriation for water supply. to unalo lotted landa of_____________ 209, 1572 M UIleJtgCf' 8tmJice, Mail, appropriation for; accounting ______190, 1052

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text: Hooper v. Scheimer

title: Hooper v. Scheimer