Nash v. Towne, 72 U.S. (5 Wall.) 689
Case details
Bluebook Citation
Nash v. Towne, 72 U.S. (5 Wall.) 689
Full caption
Nash v. Towne.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Clifford (Justice)
Majority
Swayne (Justice)
Nash v. Towne.
Courts, in the construction of contracts, look to the language employed,
e subject-matter, and the surrounding circumstances; and may avail
t emselves of the same light which the parties enjoyed when the contract was executed. They are, accordingly, entitled to place themselves in the same situation as the parties who made the contract, in order that t ey may view the circumstances as those parties viewed them, and so
meaning ^le wor<^s an<^ the correct application of
e language to the things described. Hence, where flour intended to V°L. v. 44
be sent to Boston was sold at Neenah, upon Lake Michigan, in midwinter, and the letter of sale stated that the flour was sold “free on board steamer at Neenah,” and was now “stored,” the inference would be that the flour was to remain in the storehouse where it was until the navigation opened in the spring, and that it was to be withdrawn and delivered on board a steamer at Neenah, free of charge to the purchasers, before the spring season of navigation closed [which was May 31]. Accordingly a sale, such as above described, will support a declaration (the fl jur not being delivered), alleging a sale of flour, stored at Neenah, and an agreement to deliver the same, when requested, free of charge, to the purchasers, on board of a steamer to be procured or furnished by the vendors at the place where it was stored, after navigation should open, and a reasonable time before the 31st day of May following, to be conveyed to the purchasers, at Boston, in the ordinary manner of transportation.
2 Proof of a sale, and payment by a sight-draft, duly paid, will support a declaration of a sale for so much “ in hand paid.”
8. Receiving the price of goods sold and to be delivered, the refusal to deliver, and a conversion of the goods, constitute plenary evidence of an implied promise to refund the price paid for them, and an action for money had and received is an appropriate remedy for the vendee on such refusal to deliver.
4. Where an agent has entered into a written contract in which he appears as principal, parol evidence is inadmissible to show, with a view o exonerating him, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed.
6. Where a party pays money on a consideration which fails, and in equity should be refunded—as for goods deliverable in futuro, but not dehv ered—the measure of damages on the recovery back is the sum paid an interest upon it, not as, ex. gr. in the case above, the value of the goo s sold at the time when by the contract they were to have been dehv ered.
Error to the Circuit Court for Wisconsin; the case being thus:
Towne & Washburne, of Boston, Massachusetts, bong t of Nash & Chapin, of Milwaukee, Wisconsin, in February, 1863, a thousand barrels of flour, and paid for them by a sight draft. The flour was not delivered, and the purchasers, Towne & Washburne, aforesaid, brought assumpsit foi t e non-delivery. The declaration contained a special count, an also the common counts.
The former set forth:
“ That the defendants, on the 5th of February, 1863, at M p. 691waukee, in Wisconsin, in consideration of $5500 dollars to them in hand paid, sold to the plaintiffs one thousand barrels of flour, then at Neenah, in the said State, of the value of $5500, and agreed that they, the defendants, on the request of the plaintiffs» after navigation at Neenah aforesaid should open in the spring of 1863, and a reasonable time before the 31si day of May, 1863, would procure, furnish, or provide a steamer on which to ship said flour, and ship the same to the plaintiffs at Boston, in the State of Massachusetts, and deliver the same on such steamer at Neenah, where said flour then was, free of charge to said plaintiffs, and to be transported in the ordinary manner and with necessary and customary transshipments to the plaintiffs at Boston.”
Plea, the general issue.
On the trial, the plaintiffs offered in evidence a letter from the defendants to the plaintiffs, dated at Milwaukee, February 5,1863, as follows:
“Your Mr. W. left here yesterday, and before going off we sold him one thousand barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and insured, .... and will value on you at sight for the amount.”
Inclosed in that letter was this bill of sale: Messrs. Towne & Washburne,
Bought of Nash & Chapin, general commission merchants, 1000 barrels of flour, Empire Mills, Iowa, round hoop, 5>, $5500.
Received payment, sight draft,
Nash & Chapin.”
This evidence was objected to by the defendants, because H tended to prove a different contract from the one declared on. The court, however, overruled the objection.
The plaintiff's then offered the sight draft with evidence its payment, and that it was drawn in payment of this our. This, too, was objected to as variant from the decaration ; but the objection was overruled.
e plaintiffs then read two warehouse receipts, one dated a^uary 31st, 1863, as follows, and the other February 5th, 1863 • p. 692692 Nash v. Towne. [Sup. Ct
“ Neenah, January 81st, 1868.
“ Received in store of Nash & Chapin, five hundred barrels Empire, Iowa, r. h. flour, to be delivered, on return of this warehouse receipt, free, on board steamer.
S. €r. Burdick.”
“Indorsed: Nash & Chapin.”
They then brought witnesses who proved that the defendants had allowed this Burdick to take the flour from his storehouse at Neenah, where it was stored, and to sell it to other persons (so to prove a conversion by the defendants to their own use), and that they refused to deliver it; setting up that the plaintiffs at the time of the sale of the flour agreed to take the warehouse receipts of S. G. Burdick, just above referred to, in lieu of the defendants’ responsibility for the flour, and had requested the defendants to hold the receipts for them, which they the defendants had done.
In the course of proving this, they asked a witness who had inquired of the defendants, in behalf of the plaintiffs, why the flour was not delivered, &c., this question:
“ What was said by the defendants, as to where the flour, described in the letter and bill, was stored; whether it had been delivered, and if not, as to why it had not been delivered?
To the admission of that question the defendants objected that inasmuch as the plaintiffs had failed to prove the special count in their declaration, and had proved an existing con tract to deliver flour to the plaintiffs, it was not competent for the plaintiffs to prove any other contract than the one set out, nor to prove a breach of such other contract under t c other counts in the declaration. But the court overru e the objection. . ..
The defendants on their side offered to prove that in se ing the flour they had acted as agents for Burdick, a ov named, and so told the plaintiffs at the time of the sale, an that they paid over the money, the proceeds of the sa e, Burdick. This was objected to by the plaintiffs because p. 693was conversation prior to or contemporaneous with a written contract (the bill of sale and letter), and would modify or contradict it, and alter the liability of the defendants under that contract. The objection was sustained and the ruling excepted to.
They set up also that the warehouse receipts of Burdick were accepted by the plaintiffs in lieu of their responsibility for the flour; a matter which went to the jury on the evidence.
The court charged :
1. “ That if the jury found that the plaintiffs had paid money to the defendants for a consideration which had failed, and which in equity the defendants ought to pay back, their verdict must be for the plaintiffs. And if they found that the defendants executed the bill of sale and letter or contract read in evidence, and the plaintiffs paid them for the flour specified, $5500, and the defendants afterwards failed and refused to deliver the flour when demanded, then their verdict should be for the plaintiffs for the amount paid by them and interest, unless the defendants delivered to, and the plaintiffs accepted the warehouse receipts in evidence in lieu of the flour.”
At the request of the defeudauts below, it also charged:
2. “ That the plaintiffs cannot recover in this cause against the defendants damage for the conversion of that flour without proof that the defendants have, after such conversion, sold the our and received pay for it, and in that case, for only the amount actually sold, and paid for, and only the price paid to them.”
And added:
he converse of such instruction is also true; that if the jury u from the evidence that the defendants had sold said one ousand barrels of flour, or any part of it, and had received the money therefor, or the benefit of such sale and payment thereof, on their verdict should be for the amount so received by said endants, unless they had delivered to the plaintiffs, and the the accePfe(^> the warehouse receipts as a delivery of 6M Nash v. Towne. [Sup. Ct
Verdict and judgment having gone for the plaintiffs, the case was now here on exception to the ruling of the court admitting the testimony, and to its instructions to the jury.
Lynde, for the plaintiff in error:
1. The declaration sets out the time of delivery to have been after the opening of navigation in the spring of 1863 (April 20th, 1863), and before the 31st day of May, 1863. The utmost that can be said of the letter is, that inasmuch as the delivery must be on board steamer, the delivery should be within a reasonable time after the opening of navigation, which is a very different period. This was a variance.
Again, the declaration avers, in effect, that the plaintiffin error agreed to provide a steamer and make the shipment, and pay the charges of the warehouseman for storage and delivery to the steamer, while the letter only agrees to pay the warehouseman’s charges for storage and delivery to steamer.
These papers were also inadmissible under the general counts, as they tended to prove an existing agreement to deliver flour which must be counted upon specially.*
II. The declaration alleged a payment in cash. Proof of payment by a bill was immaterial to the issue and variant from the count.
III. The court erred in allowing the question: “ What was said by the defendant as to where the flour was stoie, &c., and as to why it had not been delivered?”
The plaintiff' had averred a contract to deliver floui at a future time. He had proved that a different one than t e one he alleged had been made. Proving a breach of t a contract would not prove the breach of his first count, nor of any of his counts.
IV. But the great error was in excluding evidence tha the defendants were acting as agents in making the sa, and that the plaintiffs knew this, and that the money r
(no text on this page in the source reporter)
ceived by the defendants had been paid over to their principals. The court erred also in charging M that if they found from the evidence that the plaintiff had paid money to the defendants for a consideration which had failed, and which in equity the defendants ought to pay back, then their verdict must be for the plaintiff.”
The plaintiffs had wholly failed to prove the special count. It was not competent to prove an agreement to deliver flour under the common counts. No other right of recovery is asserted except moneys had and received to recover the consideration paid. There is no contract to pay back that money between the parties. It could only be recovered in a case where the defendant had received money of the plaintiff, which ex aequo et bono he should return.*
The evidence was excluded upon the authority of a special class of cases.f But in those cases the action was directly upon the contract; in this case it was not, and the contract here is only valuable in evidence as an admission of a fact, which admission could be contradicted or explained.
Now, when the action is brought, not upon the contract, but upon the facts and the equities growing out of them, why should not all the facts be proved ? How could the jury say that the defendants ought, in equity, to pay back this money, without knowing whether the plaintiffs intended to pay and did pay their money to Burdick or the defendants; and whether Burdick or the defendants actually had the benefit of the money?
Again, the court erred in charging “ that if they found that the defendants executed and delivered the bill of sale and letter or contract read in evidence, and the plaintiff paid them for the flour specified, $5500, and the defendants afterward failed and refused to deliver the flour when called for, their verdict should be for the plaintiffs for the amount paid y them and interest.” This instruction directs a recovery upon the contract. The jury were not allowed to inquire p. 696whether the contract was rescinded or not. There are two objections to this charge:
*
Straton v. Eastall, 2 Term, 366. t Such as Jones v. Littledale, 6 Adolphus & Ellis, 486; and Higgins r Senior, 8 Meeson & Welsby, 844.
1. There is no such contract set out in the declaration, as is evidenced by the letter and bill of parcels; and, the record would not be a bar to a new action on the letter and bill of parcels.
2. The measure of damages is incorrectly stated. The amount of the recovery for a breach of the contract would be the value of the flour at the time when it should have been delivered.
J/r. Waldo, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.
Controversy in this case grew out of a contract for the purchase, sale, and delivery of one thousand barrels of flour, and the parties concur that the flour was never delivered by the original defendants. Special count, as amended, alleged, in substance and effect, that the defendants, on the fifth day of February, 1863, at Milwaukee, in the State of Wisconsin, in consideration of five thousand five hundred dollars, sold to the plaintiffs one thousand barrels of flour, stored at Neenah, in that State, and agreed to deliver the same, when requested, free of charge, to the plaintiffs, on board of a steamer to be by them procured or furnished at the place where it was stored, after navigation should open, and a reasonable time before the thirty-first day of May following, to be conveyed to the plaintiffs, at Boston, in the ordinary manner of transportation. They also alleged demand an refusal to deliver the flour as agreed, and claimed damages for the non-fulfilment of the contract. Declaration also con tained the common counts as set forth in the record.
Plea was the general issue, and the verdict and judgmen were for the plaintiffs, and the defendants excepted and sue out this writ of error. Exceptions were taken by the e fendantg to certain rulings of the court during the tria, an to certain instructions of the court as given to the jury a
the testimony was closed, which will be considered in the order they are exhibited in the record.
I. Plaintiffs produced and offered to read in evidence, to prove the issue on their part, a certain letter, dated Milwaukee, February 5,1863, and written by the defendants to the plaintiffs, and a bill of sale of the flour, executed at the same time and place, and signed by the defendants, and which was inclosed in the letter of the defendants so offered in evidence. Material parts of the letter were as follows: “Your Mr. W. left here yesterday, and before going off we sold him 1000 barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and insured, . . . and will value on you at sight for the amount.” Inclosed in that letter was the following bill of sale, which was also signed by the defendants:
“Messrs. Towne & Washburne,
Bought of Nash & Chapin, general commission merchants, 1000 barrels of flour, Empire Mills, Iowa, round hoop, 5 J, $5500.
Received payment, sight draft,
(Signed) Nash & Chapin.”
Such being all the evidence offered by the plaintiffs, under the special count, the defendants objected that the evidence was not admissible in the case, because it tended to prove a different contract from that set out in the declaration, but the court overruled the objection, and the letter and bill of sale were read in evidence to the jury.
Defendants excepted to the ruling of the court, and that exception raises the first question presented for decision in the record. Obviously, the exception involves the construc,on the special count, and of the contract exhibited in t e letter and bill of sale offered in evidence. . Argument of the defendants is that the contract offered tn evidence varied from the allegations of the special count ln two particulars:
• That it differed from the declaration as to the time en the floui was to be delivered.
698 Nash v. Towne. [Sup. Ct
2. That it also differed from the declaration as to the shipment of the flour, and because it contained no agreement to furnish a steamer.
Undoubtedly, the rule is that the proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved.
1. Allegations of fact in the pleadings, affirmed on one side and denied on the other, must in general be tried by a jury, and the purpose of the rule which requires that the allegations and the proofs must correspond, is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue. Formerly, the rule in that respect was applied with great strictness, but the modern decisions are more liberal and reasonable. Decided cases may be found, unquestionably, where it has been held that very slight differences were sufficient to constitute a fatal variance. Just demands were often defeated by such rulings until the Parliament interfered, in the parent country, to prevent such flagrant injustice.*
Federal courts have possessed the power, from their organization to the present time, to amend such imperfections in the pleadings, except in cases of special demurrer set down for hearing, and are directed to give judgment accor ing to law and the right of the cause.f
Recent statutes in the States also confer a liberal discretion upon courts in allowing amendments to pleadings, an those statutes, together with the change they have supenn duced in the course of judicial decision, may be said to have established the general rule in the State tribunals that no variance between the allegations of a pleading and the pioo s offered to sustain it, shall be deemed material, unless it of a character to mislead the opposite party in maintaining his action or defence on the merits.^
* 1 Taylor on Evidence, § 173, p. 187. f 1 Stat, at Large, 91. . . . m j | 3 Phillips on Evidence, 4th Am. ed. 148; Harmony »• in? Duer, 210; Catlin v. Gunter, 1 Kernan, 368.
Dec. 1866.] Nash v. Towne. 699
Irrespective of those statutes, however, no variance ought ever to be regarded as material where the allegation and proof substantially correspond. Contract m this case was executed in midwinter, when the navigation was closed, and both parties knew that the flour could not be transported until the navigation opened in the spring. “ Free on board the steamer at Neenah” meant that the defendants should deliver the flour on board the steamer without charge to the plaintiffs. Time of delivery is not specified, but it was to be on board a steamer at Neenah, and it would be unreasonable to suppose that the parties contemplated that it should be withdrawn from the warehouse where it was stored in safety and insured and deposited in a steamer, even if one was there, before the navigation opened in the spring.
Courts, in the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described.*
Applying those rules to the case, it is quite clear that the parties did not contemplate that the flour should be withdrawn from the warehouse, where it was safely stored and insured, until the navigation opened in the spring, because the withdrawal of the same before that time would have been worse than useless, as it could not be earlier transported to the place of destination, and if withdrawn and delivered it would involve unnecessary expense and the necessity of ye-warehousing it and procuring a new insurance. Plain inference, therefore, is that it was to remain in the storehouse where it was until the navigation opened in the spring p. 700700 Nash v. Towne. [Sup. Ct.
*
Barreda et al. v. Silsbee, 21 Howard, 161 ; Shore v. Wilson, 9 Clark & innelly, 569; Addison on Contracts, 846.
but that it was to be withdrawn and delivered on board a steamer at that place, free of charge to the plaintiffs, before the spring season of navigation closed.
Such being the true construction of the contract as to the time the delivery of the flour was to be made, it is evident that the objection that there is a variance in that respect between the proofs offered in evidence and the special count cannot be sustained. Averment of demand and refusal in the count is not unusual in such cases, and, even if not strictly necessary, it certainly can afford no ground to support the present exception.
2. Second objection taken at the argument is that the contract, as proved, does not support the allegation that the defendants agreed to procure or furnish a steamer at the place of delivery, or to ship the flour on board a steamer free of charge to the plaintiffs, as alleged in the special count.
Express words of the contract are, “ free on board steamer at Neenah,” and the terms of the contract also show that the flour, at the date of the contract, was safely stored in aware-house at the place where it was to be delivered. Those words necessarily imply that the flour was in the possession and under the control of the defendants, and that the delivery was to be made in the future. Terms of the contract also imply as clearly that the place of delivery was on board a steamer at that port as they do that the delivery was to be made by the defendants. Freight was to be paid by the plaintiffs, but the delivery on board the steamer was to be made by the defendants, and it follows, in the absence of any stipulation to the contrary, that the defendants were to pio cure or select the steamer to transport the flour down t e bay, and to the place of transshipment, over the usual route. Our conclusion is, that the allegations of the special count, and the proofs given in evidence, were substantially ie same, or, in other words, that the differences between them, if any, were not of a character which could have misle t e defendants at the trial, and therefore the objection must overruled.
II. Evidence was also introduced by the plaintiffs showing that the defendants drew on them for the whole amount of the purchase-money, in a sight draft, and that they paid the draft, as given in evidence, when it was presented.
Exceptions were taken by the defendants to the rulings of the court in admitting that evidence, but the rulings of the court were so clearly correct that it seems unnecessary to remark further upon the subject.
III. Plaintiffs also proved that the flour, at the date of the contract, was stored in a railroad warehouse at Neenah, and that the defendants had admitted that it had been sold and delivered to a third person prior to the commencement of the suit. They went further, and proved demand and refusal, and showed that the defendants, at the date of the contract, had but one thousand barrels of flour stored in that warehouse, and that the whole of that parcel was sold and delivered prior to the suit, with the defendants’ knowledge and consent.
Witnesses were examined on the subject, and in the course rf their examination two other exceptions were taken by the defendants to the rulings of the court in admitting testimony. Substance of the testimony objected to and introduced was that the flour was withdrawn from the warehouse where it was stored, at the date of the contract, under the orders of the defendants, and deposited in another place, and Anally delivered to other parties, in part fulfilment of a much arger contract. Testimony previously introduced showed that the plaintiffs accepted the sight draft, and paid the same or the purchase-money, and that the defendants refused to eliver the flour; and the evidence objected to was doubt-ess offered to show that they had converted the flour to eir own use, and, in our judgment, it was properly admitted for that purpose. Where the seller of goods received e Purchase-money at the agreed price, and subsequently re used to deliver the goods, and it appeared at the trial that e rad converted the same to his own use, it was held at a Very early period that an action for money had and received Ou d lie to recover back the money, and it has never been p. 702702 Nash v. Towne. [Sup. Ct,
heard in a court of justice since that decision that there was any doubt of its correctness.*
Assumpsit for money had and received is an equitable action to recover back money which the defendant injustice ought not to retain, and it may be said that it lies in most, if not all, cases where the defendant has moneys of the plaintiff which, ex equo et bono, he ought to refund. Counts for money had and received may be joined with special counts; and where, as in this case, the special counts are for damages for the non-delivery of goods, it is perfectly competent for the plaintiff, if the price was paid in money or money’s worth, to prove the allegations of the special counts and introduce evidence to support the common counts; and if it appears that the defendant refused to deliver the goods, and that he has converted the same to his own use, the plaintiff, at his election, may have damages for the non-delivery of the goods, or he may have judgment for the price paid and lawful interest. Evidence in this case was clear, not only that the plaintiffs paid the price in money, but that the defendants refused to deliver the flour, and converted the same to their own use, by selling and delivering it to other persons.!
Such a reception of the price, refusal to deliver, and conversion of the goods constitute plenary evidence of an implied promise to refund the price paid, and an action for money had and received is an appropriate remedy for t e plaintiffs.
Principal defence was that the flour belonged to one Samuel Gf. Burdick, and that the defendants, in negotiating the sale, acted merely as the agents of the owner of® flour, and that they, during the negotiation for the sale, m formed the plaintiffs of their agency, and gave to them name of their principal as the owner of the flour. They a s claimed that the plaintiffs agreed at the sale of the °^r take the warehouse receipts of their principal for the o, p. 703and that the defendants merely held those receipts at the request of the plaintiffs, and for their benefit, and were therefore under no obligations to deliver the flour.
*
Anonymous, 1 Strange, 407; 2 Greenleaf on Evidence, 124 + Allen r. Ford, 19 Pickering, 217; Jones v. Hoar, 5 Id.
Such was the theory of the defendants, but there was no proof of any such agreement, except that one of the plaintiffs testified that the defendants, when the demand was made for the delivery of the flour, claimed that such was the understanding of the parties at the date of the contract. Defendants introduced no testimony, but offered to prove that in negotiating the sale they acted as agents, and that they so informed the plaintiffs, and gave them the name of their principal. Plaintiffs objected to the testimony, and it was excluded by the court, and the defendants excepted. They still insist that the ruling of the court in that behalf was erroneous, but they admit the general rule that parol evidence is not admissible to supply, contradict, enlarge, or vary the words of a written contract; and it is equally well settled that when a contract is reduced to writing all matters of negotiation and discussion on the subject antecedent to and dehors the writing are excluded as being merged in the instrument.* Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed.!
Where a simple contract, other than a bill or note, is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such evidence, says Baron Parke, does not deny that the contract mds those whom on its face it purports to bind, but shows
p 312^en^S Uth e^- 746; 1 Greenleaf on Evidence, 12th ed., § 276
t Higgins v. Senior, 8 Meeson & Welsby, 844.
that it also binds another, and that principle has been fully adopted by this court.*
Cases may be found, also, where it is held that the plaintiff may prove by parol that the other contracting party named in the contract was but the agent of an undisclosed principal, and in that state of the case he may have his remedy against either, at his election.!
Evidence to that effect will be admitted to charge the principal or to enable him to sue in his own name, but the agent who binds himself is never allowed to contradict the writing by proving that he contracted only as agent, and not as principal.^
Exceptions were also taken to the charge of the court, but they involve, for the most part, the same questions as are presented in the objections taken to the admissibility of the evidence, and therefore do not require to be further answered. Slight as the evidence was to show that the plaintiffs accepted the warehouse receipts in lieu of the flour, still the court left that question to the jury, and their finding upon the subject is conclusive. Complaint is also made that the rule of damages given to the jury was not correct, but the complaint is so clearly without merit that we forbear any further comments upon the subject.
Judgment affirmed, with costs.
*
New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 Howard, 381 ; v. Williams, 21 Id. 289 ; Oelricks et al. v.-Ford, 23 Id. 63. f Thomson v. Davenport, 9 Barnewall & Cresswell, 78. J Jones v. Littledale, 6 Adolphus & Ellis, 486; 1 Parsons on Con r, 5th ed. 64; Titus v. Kyle, 10 Ohio N. S. 444; 2 Smith’s Leading Cases. Am. ed. 421.
City of Galena v. Amy.
1. Where an act, amending a city charter, says that the city council “may, if it believe that the public good, and the best interests of the city require " it, levy a tax to pay its funded debt, a mandamus will lie, at the suit of a judgment creditor, to make it levy a tax, if it does not. The Supervisors, $c., v. United States (4 Wallace, 435), approved.
2. Where a city has a power, such as the one above given, it is no return to an alternative mandamus, commanding it to lay a special tax of one per cent, to pay the principal, and one per cent, to pay the interest and costs of judgments obtained against it for non-payment of its funded debt, or show cause, &c., that it did, in one year, levy such a tax, and that the funds raised by it are wholly exhausted.
Nor is it an argument against the issuing of a peremptory mandamus, that the city owes a large amount of other debts, and that if these taxes are collected, other creditors will be entitled to share in the distribution of the proceeds.
3. The acts of the General Assembly of Illinois passed June 30th, 1857, and February 6th, 1865, amendatory of the act of June 21st, 1852, giving by its fourth section the power to tax as quoted in the first paragraph above, do not repeal that fourth section.
The fourth, section of a statute of Illinois, passed June 21,1852, and incorporating the city of Galena, declares that the city council “ may, if the said city council believe that the public good and the best interests of the city require,” annually collect a tax, not exceeding one per cent, on a dollar on the assessed value of all estate taxable in the city, in addition to all other taxes; the fund to be kept separate, and annually, 011 the 1st of January, paid over, pro rata, upon the funded indebtedness of the city. “ This section to continue and be in force until the whole amount of the city’s indebtedness, with the interest to accrue thereon, is fully paid.”
With this provision in force, the city issued a large amount o bonds to enable it to make various public improvements.
ne having become possessed of a number of them, an the interest being unpaid, he brought suit and obtained jn gnient against the city upon them in the Circuit Court ior Northern Illinois. The validity of the bonds was not fled"'1 I** ^ues^on' The judgments being wholly unsatise > and the city having no property liable to execution, vol. v. 45 p. 706Amy demanded of the mayor and aidermen that they should levy a tax to pay principal, interest, and costs of the judgment. They refused to do so. He then filed an information in the Circuit Court for the Northern District of Illinois, for a mandamus. He set forth the above quoted fourth section of the act of June 21st, 1852, empowering the city council to levy a specific tax of one per cent, to pay the interest on its funded debt, and that this tax had not been levied. That, by an act of June 30th, 1857, the city council was authorized to levy, 1st, a tax of one per cent, for general and contingent expenses; 2d, five mills for school purposes; 3d, one per cent, to pay interest on public debt; 4th,an unlimited tax for market halls, &c., and other public improvements. That none of the taxes to which the plaintiff, as a bond creditor, has a right, had been levied and applied to his principal or interest after a period named, long past. And he prayed the court to issue a mandamus, commanding the city council and their successors in office, at their next regular term, to levy a special tax upon the taxable property of the city of one per cent, to pay the principal, and one percent, to pay the interest and costs of the judgments; u and to pay the same out of the proceeds, and to continue to levy a like amount for each succeeding year until said judgments, interests, and costs are wholly paid.”
The city made a return, that in 1865 they levied a tax of one per cent, to pay interest on public debt, and that it ha been applied to a proper and lawful purpose.
They set up in bar of the plaintiff’s right, that the on y powers to tax which they had were by the acts of June 30t, 1857, already mentioned, and an act of February, 186, amendatory of the act of 1852. Sections of these last two acts relating to taxation, and stating for what purposes taxes might be laid, were set forth. In the act of 1857 were these:
“ Section 1. The city council shall have power, by ordinan^ to levy and collect annual taxes not exceeding one per cen the dollar on the assessed value of all real and persona
and property within the city, &c., made taxable by the law of the State for State purposes, to defray the general and contingent expenses of the city, not herein otherwise provided for; which taxes shall constitute the general fund.
11 Section 3. To levy and collect taxes not exceeding one per cent, on the dollar per annum on all property subject to taxation, to meet the interest accruing on the debt of the city.”
In the act of 1865 the following:
“Section 12. The city council shall levy and collect a tax of one per cent, on the dollar per annum on all property subject to taxation; which tax, when collected, shall be set apart for the sole and exclusive purpose of paying the interest upon the public debt of the city, whilst the same is in existence.”
The latter act, the act of 1865, also contained the section set forth in the return.
“ Section 19. All acts, or parts thereof, which conflict with the provisions of this act are also repealed; but nothing in this act shall be so construed as to deprive the city council of said city of any power or authority conferred upon the same by the act incorporating the city, and the various acts amendatory thereof, except so far as such powers and authority have been expressly modified or repealed by this act or the acts heretofore mentioned.”
The return further set forth that the principal of the debt was $142,272, and the assessed value of the property, real and personal, within the city jurisdiction, was $740,000, and at the annual interest upon the debt now exceeded one per cent upon the assessed value of the property in the city liae to taxation. It added that the councils intended, in good ait i towards the city and its creditors (the relator included), o evy all the taxes which it had a right by law to levy. But at the General Assembly having, by the acts aforesaid, wMl a upon the power of taxation, the councils were nie°t^ Una^e ™se money for the payment of the judg-
, excepting by means of proper ordinances passed
Lr and in pursuance of section one of the act of p. 708January 30, 1857 (above quoted), and that by that section moneys raised were first to be applied to the payment of the ordinary and contingent expenses of the city, and unless so applied that the government of the city could not be administered.
To this answer the relator demurred. The court sustained the demurrer; and the respondents electing to stand by the return, it was ordered that a peremptory mandamus should issue. The respondents now brought the case before this court for review.
Jfr. Jewett, for the city, plaintiff in error; Mr. Grant, contra.
Mr. Justice SWAYNE delivered the opinion of the court, having first stated the case.
Most of the legal principles which are involved in this case, and which must govern its determination, have been settled in other cases decided at this term.
Was there any error in the rulings of the Circuit Court? The fourth section of the act of 1852 declares that the city council, if they believe the public good and the best inter-
ests of the city require it, may levy and collect an annual tax of not exceeding one per cent., and that the amount thus collected shall be kept separate; and that annually, on the 1st of January, it shall be paid over pro rata upon the funded debt of the city, that may be presented by the holders; and that this section shall continue in force until the principal and interest of the indebtedness is fully paid.
This power has not been exercised by the city authorities, and they have made no other provision for liquidating t ie debts due to the relator. They have no other means of pay ment, in possession or prospect. Under such circumstances, the discretion thus given cannot, consistently with the ru es of law, be resolved in the negative. ,
The rights of the creditor and the ends of justice deman that it should be exercised in favor of affirmative action, an the law requires it. In such cases the power is in the of a trust for his benefit, and it was the plain duty oi p. 709court below to give him the remedy for which he asked, by awarding a peremptory writ to compel the imposition of the tax, as was done.
These principles were fully considered in The Supervisors of Bock Island County v. The State Bank, of this term,* and it is sufficient to refer to that case for a fuller exposition of our views upon the subject.
This section of the act of 1852 is not repealed by either the act of 1857 or the act of 1865. There is no express repeal, and we think there is none by implication. The latter is not favored in the law\ Repeal by implication, when the prior and the later act can consistently stand together, is never admitted.^ Here there is no irreconcilable conflict, if indeed there be any. This point seems not to be relied upon by the counsel for the plaintiffs in error.
It is conceded that this act was in force when the bonds in question were issued. If so, it was beyond the power of the legislature to repeal it, so far as it concerns the bonds in question, unless some other adequate remedy were substituted in its place.J
The third section of the act of 1857 and the twelfth section of the act of 1865 each authorizes the collection of one per cent., to be applied to the payment of the interest upon the city debt. The latter re-enacts the former. The efficacy of this provision is not denied. The order of the Circuit Court with respect to this tax was correct.
The return of the respondents showed no sufficient reason why a peremptory writ of mandamus should not issue, as was ordered. The demurrer of the relator was properly sustained.
It is insisted that the city owes a large amount of other ebts, and that if these taxes are collected the other creditors will be entitled to share in the distribution of the proceeds.
It is not competent for the respondents to make this objec-2°n‘ When any other creditor complains in a proper pro«
* 4 Wallace, 435. f McCool v. Smith, 1 Black, 471. I Van Hoffman v. The City of Quincy, 4 Wallace, 535.
ceeding, and asks that the funds be marshalled, it will ba time enough to consider the subject.
The counsel for the plaintiffs in error has called our attention, with emphasis and eloquence, to the diminished resources of the city, and the disproportionate magnitude of its debt. Much as personally we may regret such a state of things, we can give no weight to considerations of this character, when placed in the scale as a counterpoise to the contract, the law, the legal rights of the creditor, and our duty to enforce them. Such securities occupy the same ground in this court as all others which are brought before us. When clothed with legal validity, it is our purpose to sustain them, and to give to their holders the benefit of all the remedies to which the law entitles them. When invalid, we have not hesitated and shall not hesitate to say so. But we cannot recognize a distinction, unknown to the law7, between this and any other class of obligations we may be called upon to enforce.
The judgment of the Circuit Court is
Affirmed.