Walker v. et, 92 U.S. 90
Case details
Citation
92 U.S. 90
Full caption
Walker v. Sauvin et.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Walk er v . Sau vin et .
1. A trial by jury in suits at common law pending in the State courts is not a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment of the Constitution of the United States to abridge. 2. Questions presented by the assignment of error cannot be considered here,
unless the record shows that they were brought to the attention of the court below.
Error to the Supreme Court of the State of Louisiana.
This is an action brought by Sauvinet against Walker, a licensed keeper of a coffee-house in New Orleans, for refusing him refreshments when called for, on the ground that he was a man of color.
Art. 13 of the Constitution of Louisiana provides that “ all persons shall enjoy equal rights and privileges upon any conveyance of a public character; and all places of business or of public resort, or for which a license is required by either state, parish, or municipal authority, shall be deemed places of a public character, and shall be open to the accommodation and patronage of all persons, without distinction or discrimination on account of race or color.” On the 23d February, 1869, an act was passed by the general assembly of the State, entitled “ An Act to enforce the thirteenth article of the Constitution of this State, and to regulate the licenses mentioned in said thirteenth article.” Sect. 3 of this act is as follows.
« Sect . 3. That all licenses hereafter granted by this State, and by all parishes and municipalities therein, to persons engaged in business, or keeping places of public resort, shall contain the expiess condition, that the place of business or public resort shall be open to the accommodation and patronage of all persons, without distinction or discrimination on account of race or color, an any p. 91person who shall violate the condition of such license shall, on conviction thereof, be punished by forfeiture of his license, and his place of business or public resort shall be closed, and, moreover, [he] shall be liable at the suit of the person aggrieved to such damages as he shall sustain thereby, before any court of competent jurisdiction.”
On the 27th February, 1871, another act was passed, entitled “ An Act to regulate the mode of trying cases arising under the provisions of article thirteen (13) of the Constitution of Louisiana, or under any acts of the legislature to enforce the said article thirteen of the said Constitution, and to regulate the licenses therein mentioned.”
Sects. 1 and 2 of this act are as follows : —
“Sec tion 1. Be it enacted by the Senate and House of Repre^ sentatives of the State of Louisiana in general assembly convened, That all cases brought for the purpose of vindicating, asserting, or maintaining the rights, privileges, and immunities guaranteed to all persons under the provisions of the article thirteen of the Constitution of Louisiana, or under the provisions of any acts of the legislature to enforce the said article thirteen, and to regulate the licenses therein mentioned, or for the purpose of recovering damages for the violation of said rights, privileges, and immunities, shall be tried by the court, or by a jury if any party to the suit prays for a trial by jury.
‘Sect . 2. Be it further enacted, &c.. That if the jury do not agree, or fail to render a verdict, either for the plaintiff or defendant, the jury shall be discharged, and the case shall be immediately submitted to the judge upon the pleadings and evidence already on file, as if the case had been originally tried without the intervention of a jury; and it shall be the duty of the judge to decide the case at once, without any further proceedings, arguments, continuance, or delay; each party having the right to appeal to the Supreme Court in all cases where an appeal is allowed by law.”
Walker in his answer denied all the allegations in the petition, and prayed for a trial by jury. The cause was thereupon ne y a jury, who failed to agree. This having been entered upon the minutes, Sauvinet, by his counsel, moved that the ourt proceed to decide the case under the provisions of sect. 2 e act of 1871. To this Walker objected, alleging for cause that the act was unconstitutional, but without specifying p. 92in what particular. Time was given counsel to file briefs upon the constitutional question; and at a later day, after consideration, a judgment was rendered against Walker for $1,000. That judgment was affirmed upon appeal to the Supreme Court of the State: whereupon Walker sued out this writ of error.
Mr. C. W. Hornor for the plaintiff in error.
The act of the legislature of Louisiana of Feb. 27, 1871, under which the proceedings in this case were had, abridges the privileges and immunities of citizens of the United States, and is, therefore, in violation of the Fourteenth Amendment of the Constitution. Slaughter-House Cases, 16 Wall. 72 et seq.; Bartemeyer v. Iowa, 18 id. 129.
Mr. J. Q. A. Fellows, contra.
Mr . Chief Jus tice Waite , after stating the case, delivered the opinion of the court.
So far as we can discover from the record, the only Federal question decided by either one of the courts below was that which related to the right of Walker to demand a trial by jury, notwithstanding the provisions of the act of 1871 to the contrary. He insisted that he had a constitutional right to such a trial, and that the statute was void to the extent that it deprived him of this right.
All questions arising under the Constitution of the State alone are finally settled by the judgment below. We can consider only such as grow out of the Constitution of the United States. By art. 7 of the amendments, it is provided, that “ in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” This, as has been many times decided, relates only to trials in the courts of the United States. Edwards n . Elliot, 21 Wall. 557. The States, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship, which the States are forbid den by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process o law; but this does not necessarily imply that all trials in the p. 93State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Murray’s Lessee v. Hoboken L. I. Co., 18 How. 280. Due process of law is process due according to the law of the land. This process in the States is regulated by the law of the State. Our power over that law is only to determine whether it is in conflict with the supreme law of the land, — that is to say, with the Constitution and laws of the United States made in pursuance thereof, — or with any treaty made under the authority of the United States. Art. 6 Const. Here the State court has decided that the proceeding below was in accordance with the law of the State; and we do not find that to be contrary to the Constitution, or any law or treaty of the United States.
The other questions presented by the assignment of errors and argued here cannot be considered, as the record does not show that they were brought to the attention of either of the courts below. Judgment affirmed.
Mr . Just ice Field and Mr . Just ice Clif fo rd dissented from the opinion and judgment of the court.
Mage e et al . v . Manhat tan Life Insur ance Comp an v .
In a suit by a company organized under the laws of the State of New York against citizens of the State of Alabama, on a bond conditioned for the faithful performance of duty, and the payment of money received for it, executed by the agent of the company who transacted business as such in the city of Mobile, where he resided, and by them as his sureties, the latter pleaded that the company as a condition upon which it would retain in its employment the agent en argely indebted to it, required such bond, and also his agreement to aPPU aU his commissions thereafter earned to his former indebtedness to it;
ate agreement was made, and the commissions were so applied; that the company new that the agent had no property, and depended upon his future cquisitions for the support of himself and family; that the defendants were tu SUCh indebtedness and agreement; that, had they been informed onmtn’ ’ n°t have executed the bond ; that the agreement as to the them ¿SS1°+iS itS performance were a fraud on them; and that the bond as to the nP aS fre Held, that the plea was bad, as it set forth neither cams ances attending the delivery of the bond, nor averred misrepre-
sentations, fraudulent concealment, opportunities to make disclosure on the part of the company, inquiries by the sureties before the bond was delivered, or knowledge by the company that the sureties were ignorant of the facts complained of. Held, further, that this agreement had no such connection with the undertaking of the sureties as to give them a right to be informed thereof, except in answer to inquiries. A? none were made, the company was under no obligation to volunteer the disclosure.
Err or to the Circuit Court of the United States for the Southern District of Alabama.
This is a suit by The Manhattan Life Insurance Company of the city of New York against the plaintiffs in error, sureties on the bond of one Henry V. H. Voorhees, who was the agent of the company at Mobile, Ala.
The bond sued on is as follows: —
“Know all men by these presents, That we, Henry V. H. Voorhees, as principal, and Jacob Magee and Henry Hall, as securities, of the town of Mobile, and State of Alabama, are held and firmly bound unto the Manhattan Life Insurance Company of the city of New York in the sum of $5,000; for which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents.
“ The condition of this obligation is such, that if the abovebounden Henry V. H. Voorhees, who has been appointed an agent of the said The Manhattan Life Insurance Company, shall faithfully conform to all instructions and directions which he, as such agent, may at any time receive from the said The Manhattan Life Insurance Company, and shall on the first day of each month remit to the office of said company all moneys received by him (not previously remitted) as such agent, less his commissions, together with his account of the same, then the above obligation to be void} otherwise to remain in full force and virtue.”
The breach assigned was the agent’s withholding from the company moneys received by him subsequently to the date of the bond, as well as other moneys remaining in his hands at the time it was executed.
The defendants pleaded three pleas. Upon the first and second, issue was joined.
The third plea was as follows: — “ For a further plea, the defendants say, that, before the execution and delivery of said bond, said Henry Voorhees was large y p. 95indebted to said plaintiffs for moneys before that time received by him belonging to plaintiffs, in conducting then* business as agent in Mobile, of which these defendants had no notice; and the plaintiffs required of him the bond described in the complaint as a condition on which only they would retain him in their employment, as agent in Mobile, in conducting their business; and, besides the bond, the plaintiffs required of said Voorhees a promise or agreement that all his future commissions and interest he might acquire and earn in conducting their business afterwards, he, the said Voorhees, should pay to the plaintiffs, to be applied to his then past indebtedness, for which said plaintiffs had no security.
“ The plaintiffs then well knowing, for so the fact was, that said Voorhees had no property or means of his own by or out of which his said past indebtedness could be paid. They also well knew, and so the fact was, that he could not support himself and family but by means of his future acquisitions by his labor; and therefore the appropriation of his commissions and interest in all his future acquisitions in conducting plaintiffs’ business would compel him, said Voorhees, to appropriate a similar amount to his support out of moneys received by him belonging to plaintiffs.
“And they further aver that said. Voorhees did promise and agree with said plaintiffs, before said bond was executed, that he would pay said plaintiffs all his commissions on the moneys that he might afterwards receive in conducting their business, to be applied to the then past indebtedness of said Voorhees to said plaintiffs. And these defendants further aver, that at the time they executed said bond, which was as the securities of said Voorhees, they had no notice or knowledge of said agreement between said Voorhees and said plaintiffs, nor any notice or knowledge that he, said Voorhees, had fallen behindhand, or had become indebted to plaintiffs ; and, if they had been informed of said agreement or of said indebtedness, they would not have executed said bond.
And these defendants further allege, that, in pursuance of said agreement, the said Voorhees did pay said plaintiffs all his commissions afterwards earned and acquired in the business of the plaintiffs, which was carried to the credit of his past indebtedness to them, in pursuance of said agreement, but retained a corresponding amount from the moneys of the plaintiffs he afterwards received, as he was compelled from necessity to do. And they art er aver that said agreement and its execution, as set forth in is p ea, was a fraud on these defendants, and therefore they are t ound by said writing obligatory? but the same, as to them, is v°i ; and of this they are ready to verify.”
To which plea the plaintiff demurred. The court sustained the demurrer.
The jury found for the plaintiffs below, and judgment was rendered accordingly: whereupon the defendants brought the case here, and assigned for error the judgment of the court in sustaining the demurrer.
Mr. P. Phillips for the plaintiffs in error.
The sureties were discharged, because the non-communication to them of the past indebtedness of the agent was, under the circumstances stated in the plea, an undue concealment. 1 Story’s Eq., sect. 215 ; Smith v. Bank Scotland, 1 Dowl. 272; Railton v. Mathews, 10 Cl. & Fin. 934; Montague v. Titcomb, 2 Vern. 518; Shepherd n . Beecher, 2 P. Wms. 288; Rees v. Barrington, 2 Ves., Jr., 540; Thompson v. Bank Scotland, 2 Shaw’s App. Cas. 316; Lee v. Jones, 7 C. B. N. s. 500; Phillips v. Foxhall, Law Rep. 7 Q. B. 666. And because the agreement to appropriate the commissions to such indebtedness was a material variation of the obligation on which they consented to be bound, and it tended to increase the risk they had assumed. 1 Story’s Eq., sects. 218, 324; Pidcock n . Bishop, 3 B. & C. 605; North-western R.R. v. Whinray, 26 Eng. Law & Eq. 488 ; Miller v. Stewart, 9 Wheat. 682; Peck v. Durett, 9 Dana, 488; Me Williams v. Mason, 6 Duer, 276; Mayhew v. Boyd, 5 Md. 102 ; Burge on Suretyship, 15.
The defence set up in the plea is available at law as well as in equity. King n . Baldwin, 2 Johns. Ch. 556; People n . Jansen, 7 Johns. 332; Swayn v. Burke, 12 Pet. 23.
Mr. J. M. Carlisle and Mr. John D. McPherson for the defendant in error.
The acts referred to do not amount to fraud; and, as the plea does not charge an intent to defraud, it is insufficient.
When the facts set forth in the plea do not constitute fraud, the intention to defraud must be averred. Moss v. Riddle, 5 Cranch, 351.
Mere non-communication is not concealment. Concealment is a failure to communicate when one has the opportunity to communicate. There may be non-communication without concealment, and there may be concealment without fraud.
“ It is now regarded as settled that there must be somet mg p. 97which amounts to fraud to enable the surety to say that he is released from his contract on account of misrepresentation or concealment.” Story’s Eq. Jur., 325 a; De Gol. on Guar., p. 362, and cases cited; Kerr on Frauds, pp. 94, 122, and cases cited; Hamilton v. Watson, 12 C. & L. 109; Burks v. Wonterlein, 6 Bush, 20; Ham v. G-reve et al., 34 Ind. 18; 2 Kent, 482, 483; United States v. Boyd, 5 How. 29.
The alleged agreement between Voorhees and the company as to the application of the money remitted worked no injury to the sureties. When the money was remitted, their liability was at an end.
Me . Just ice Swayn e delivered the opinion of the court.
The defendant in error sued the plaintiffs in error upon a bond, which recited that Henry V. H. Voorhees had been appointed an agent of the insurance company, and was conditioned for his paying over to the company all moneys belonging to it which he should receive.
The breach alleged was that he had received such moneys, which he had failed to pay over.
The defendants pleaded three pleas : —
(1.) That Voorhees had paid over all moneys belonging to the company which he received after the execution of the bond.
(2.) That, at the time of the execution of the bond, Voorhees, as such agent, was indebted to the company, and that there was an agreement between him and the company that all moneys received by Voorhees should be credited upon this indebtedness ; that these facts were concealed from the defendants, and that all the moneys so received were so credited.
(3.) That the plaintiffs required the giving of this bond as a condition on which only they would retain Voorhees in their employment as such agent; that they required, further, an agreement by Voorhees that all his commissions thereafter earned should be applied to his past indebtedness to the company; that they were so applied; that the defendants were ignorant of the indebtedness and of this agreement; that, if they had een informed of them, they would not have executed the bond; n that the agreement as to the commissions and its execution
VOL. II. »
were a fraud on them, and that the bond, as to them, was therebyavoided.
The third plea was demurred to, and the demurrer was sustained. Issue was taken upon the first and second pleas. The jury found for the plaintiff, and the court gave judgment accordingly.
The only question presented for our determination is as to the sufficiency of the third plea.
The demurrer admits the substantial facts which the plea avers. Do the agreement as to the commissions, and the circumstances that it was unknown to the sureties and not communicated to them by the company, exonerate the sureties from liability upon the bond?
A surety is “ a favored debtor.” His rights are zealously guarded both at law and in equity. The slightest fraud on the part of the creditor, touching the contract, annuls it. Any alteration after it is made, though beneficial to the surety, has the same effect. His contract exactly as made is the measure of his liability; and, if the case against him be not clearly within it, he is entitled to go acquit. Ludlow v. Symonds, 2 Caine’s Cas. 1; Miller v. Stewart, 9 Wheat. 681.
But there is a duty incumbent on him. He must not rest supine, close his eyes, and fail to seek important information within his reach. If he does this, and a loss occurs, he cannot, in the absence of fraud on the part of the creditor, set up as a defence facts then first learned which he ought to have known and considered before entering into the contract. Kerr on Fraud and Mistake, 96.
Vigilantibus et non dormentibus jura subveniunt.
Where one of two innocent parties must lose, and one of them is in fault, the law throws the burden of the loss upon him. Hearne v. Nichols, 1 Salk. 289.
It may be well, before examining the question arising upon the plea, to advert to some of the points bearing upon the subject which have been adjudged in authoritative cases.
A fraudulent concealment is the suppression of something which the party is bound to disclose. Kerr, supra, 95.
To constitute fraud, the intent to deceive must clearly appear. Spofford v. Newson, 9 Ired. Law, 507.
The concealment must be wilful and intentional. De Gol. on Guar, and Sur. 366.
The test is, whether one of the parties knowingly suffered the other to deal under a delusion. 2 Kent’s Com. (Comst. ed.) 643.
The mere relation of principal and surety does not require the voluntary disclosure of all the material facts in all cases. The same rule as to disclosures does not apply in cases of principal and surety as in cases of insurance on ships or lives. North Brit. Ins. Co. v. Loyd, 10 Exch. 533.
In this case a former guarantor was discharged, and others taken in his place. The fact of the prior guaranty was not disclosed. The subsequent guarantors made no inquiry, and they were held to be liable. If the surety desires information, he must ask for it. The creditor is not bound to volunteer it. An undisclosed prior debt will not affect the validity of the contract. Hamilton v. Watson, 12 Cl. & F. 119.
If the creditor be applied to, he must make a full and frank communication. De Gol., supra, 367.
One took a note from another whom he knew to be insolvent, and did not disclose that fact to a person who became surety. It was held that the surety was bound, and that the payee had a right to presume he was aware of the insolvency of the principal. Ham v. G-reve, 34 Ind. 18.
To render the general allegation of concealment sufficient in a pleading, it is necessary also to aver that the creditor either procured the surety’s signature, or was present when the instrument was executed, and then misrepresented or concealed essential facts which should have been disclosed; otherwise the allegation of fraud is only the pleader’s deduction. Burks v. Wonterlein, 6 Bush, 24.
In this case the court said, “ The principal may have presented her” (the payee) “the note, signed in her absence, w en she could have made no communication to the surety, an could, therefore, have been guilty of neither misrepresentaion nor concealment; and the general allegation of concealment does not negative the idea of her absence.” Id.
n such circumstances, the creditor is under no obligation, ega or moral, to search for the surety, and warn him of the p. 100danger of the step he,^about to take. No case has gone so far as to pe^uire this to be done. Wyeths v. Labouchere, 3 De G.
Tf^cteditor^ls not bound to inform the intended surety of matters effecting th^credit of the debtor, or of any circumstanc^^iwonn^^ with the transaction in which he is about to ,<
appears by the record in this case that the plaintiff was a corporation of the city of New York; that Voorhees was the agent of the company at Mobile, in the State of Alabama; and that the parties to the bond were all of that city.
The plea does not set forth any of the circumstances attending the execution and delivery of the bond. It does not aver that there was any misrepresentation, any thing fraudulently kept back, or any opportunity to make disclosures on the part of the company, or any inquiry by the sureties, before the bond was delivered. Nor is it averred that the company was aware that the sureties were ignorant of the facts complained of. It is, perhaps, to be inferred from the plea that the fact was as the record, aside from the plea, shows it to have been — that the bond was executed at Mobile, and sent by Voorhees by mail to the company in New York. If this were so, the company, upon receiving it, was under no obligation to make any communication to the sureties. The validity of the bond could not depend upon their doing so. The company had a right to presume that the sureties knew all they desired to know, and were content to give the instrument without further information from any source. Under these circumstances, it was too late, after the breach occurred, to set up this defence.
There is another objection to the plea. There was nothing fraudulent in the agreement. The obligation of the agent was simply to pay over the money of the company which he should receive. This the sureties guaranteed that he would do. io do it was a matter of common honesty ; not to do it was a fraud. The agreement of the agent to apply money belonging to him derived from any source in payment of a pre-existing e 0 the company had no such connection with what t e su stipulated for as gave them a right to be informed on the subject, except in answer to inquiries they might have made. p. 101They made none, and there was no obligation on the part of the company to volunteer the disclosure.
On both these grounds the plea was bad, and the demurrer was properly sustained. Judgment affirmed.