Wicker v. Hoppock, 73 U.S. (6 Wall.) 94
Case details
Bluebook Citation
Wicker v. Hoppock, 73 U.S. (6 Wall.) 94
Full caption
Wicker v. Hoppock.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Swayne (Justice)
Majority
Miller (Justice)
Wicker v. Hoppock.
1. The rules about judicial sales which make void as against public policy agreements that persons competent to bid at them will not bid, forbid such agreements alone as are meant to prevent competition and induce a sacrifice of the property sold. An agreement to bid, the object of it being fair, is not void. 2. On a breach of a contract to pay, as distinguished from a contract to indemnify, the amount which would have been received if the contract had been kept, is the measure of damages if the contract is broken.
Error to the Circuit Court for Northern Illinois.
Caldwell being owner of a distillery, subject to a mortgage to Hoppock, leased it to Chapin & Co. for three years; it being agreed by the lease itself that the rent, so much a year, should be paid by Chapin & Co. directly to Caldwell the mortgagee, so as to keep down in part the interest on the mortgage. Chapin & Co., after being for about eighteen months' in occupation of the distillery, and accumulating at it a considerable amount of personal chattels, such as are commonly used about such a place, assigned the lease to one Wicker under some sort of partnership arrangement, and Wicker went in. The rent not having been paid, according to his agreement, by Chapin & Co. to Hoppock, the mortgagee, Hoppock applied now to Wicker to pay it, giving him to understand that unless he did pay it, suit of foreclosure would have to be brought on the mortgage, and he dispossessed. After some negotiations, Wicker, who it seemed was desirous of becoming owner of the personal chattels which Chapin & Co. had left at the distillery, agree with Hoppock that if he, Hoppock, would sue Chapin & Go. for the amount of rent in arrear and obtain judgment an lew on the property, he, Wicker, “ would bid it off for whatever the judgment and costs might be.” Hoppock did accordingly sue and obtain judgment against Chapin & Go., the judgment having been for $2206. Chapin & Co. were indebted also to Wicker on some transactions growing out of the distillery; and Wicker, who asserted himself to have advanced money on it, caused most of the property a rea mentioned as left by Chapin & Co., to be removed to Gh - p. 95cago. Hoppock’s counsel meaning to proceed with his execution, gave notice to Wicker of the intention to sell and of the day of sale. Wicker, however, did not attend the sale, nor was any'bid made in his name. And all the property of Chapin & Co. that was there and could be levied on was knocked down to Hoppock, the only bidder, for the sum of two dollars. Thereupon Hoppock brought assumpsit in the Circuit Court for Northern Illinois—the suit below—against Wicker to recover damages for the breach of his agreement to appear at the sheriff’s sale and bid off the property levied on for the full amount of the judgment for which the execution issued.
The court below, against requests by the defendant’s counsel to charge otherwise, considered and charged—
1. That the agreement between Hoppock and Wicker was not invalid as tending to prevent the fairness of a judicial sale, and therefore against public policy.
2. That the measure of damages was the amount of the judgments with interest and costs.
The case was now here on writ of error by Wicker, for a review on these points.
Mr. C. H. Reed, for the plaintiff in error:
The agreement between Wicker and Hoppock was invalid because calculated to interfere with, and prevent the fairness and freedom of a judicial sale; and prevent competition, and therefore against public policy.
1. The law guards all judicial sales with jealous care, and any agreement or understanding, that any one person competent to bid will abstain from bidding, will not be enforced, no matter how pure the motive moving to such agreement. It matters not even if the defendant in the writ assents to such agreement, for his creditors, as well as himself, have a right to say that nothing shall be done tending to sacrifice his property.* In this case, by carrying out the agreement, p. 96Hoppock could not bid at the sale. It is no answer to say that Hoppock was not bound to bid, and might not have done so even if there had not been this agreement. It is sufficient to say, that independently of this agreement (which in its spirit did put him under an obligation to. leave all bidding to Wicker), he was competent and at liberty to bid.
*
Thompson«. Davies, 13 Johnson, 112; Jones v. Caswell, 3 Johnson’s ases, 29; Brisbane v. Adams, 3 Comstock, 129 ; Slingluff v. Eckel, 24 Pennsylvania State, 472.
2. As to the measure of damages. Hoppock himself now holds the judgment against Chapin & Co., in full force, except as to the two dollars bid by himself; and he holds at the same time a judgment against Wicker for the full amount of such judgment, and he holds over and above both the property sold to him at the sheriff’s sale. And he would seem to have the right to hold on to and enforce and enjoy all unless this judgment against Wicker be reversed; for Wicker does not stand in the relation of surety for Chapin & Co., nor is he in any position upon any known principle of law or equity, to be subrogated to the judgments against them, on paying the judgment against himself. This singular result is the consequence of the erroneous rule of damages adopted by the court below. It arose out of a departure by the court from that salutary and elementary principle, that in all actions upon contract, “ the damages are strictly limited to the direct pecuniary loss resulting from a breach of the agreement in question.”*
If Chapin & Co. were solvent, and they are presumed to be,j" then the direct pecuniary loss sustained by Hoppock by the failure of Wicker to bid, was but nominal, as his judgments wyould be worth par, and they could be worth no more had Wicker fulfilled his agreement. If they were good for a portion, then Hoppock’s direct pecuniary loss was only equal to the balance. Whatever the property was worth that Hoppock bid off at the sheriff’s sale, should also be deducted from his direct pecuniary loss, for had Wicker bi it off, Hoppock certainly could not. Yet without any p. 97reference to these questions, the court below instructed the jury peremptorily to find as damages the full amount of the judgments and interest.
*
Sedgwick on Damages, 204. j- Walrod v. Ball, 9 Barbour, 271.
Mr. S. W. Fuller, contra:
1. The rules relied on by the other side about judicial sales only forbid agreements made with a fraudulent purpose, and agreements not to bid at such sales. See specially in the Supreme Court of Massachusetts, Phippen v. Stickney;* in that of New York, Bame v. Drewrf and in Illinois, Garrett v. Moss et a.l.\
2. The amount which would have been received if the contract had been kept, is the measure of damages, if the contract is broken.§
Mr. Justice SWAYNE delivered the opinion of the court.
It is said that the agreement between the parties “ was invalid because calculated to interfere with, and prevent the fairness and freedom of a judicial sale; and prevent competition, and therefore against public policy.”
The contract was, that the defendant in error should procure judgments against Chapin & Co. for the rent in arrear, levy upon the machinery and fixtures in the distillery, and expose them for sale, and /that the plaintiff in error should bid for them the amount of the judgments.
The validity of such an arrangement depends upon the intention by which the parties are animated, and the object sought to be accomplished. If the object be fair—if there is no indirection—no purpose to prevent the competition of bidders, and such is not the necessary effect of the arrangement in a way contrary to public policy, the agreement is unobjectionable and will be sustained.
In one of the cases to which our attention has been called,||
* 3 Metcalf, 384. f 4 Denio, 287. $ 20 Illinois, 549. 12^TA Gt al‘ V' KeiShley> 15 Beeson & Welsby, 116; Hill v. Smith,
II Phippin v, Stickney, 3 Metcalf, 384.
VOL. VI. 7
there was an agreement between two persons, that one of them only should bid, and that after buying the property, he should sell a part of it to the other upon such terms as the witnesses to the agreement should decide to be just and reasonable.
In another* it was agreed that a party should bid a certain amount for a steamboat, about to be sold under a chattel mortgage, and transfer to the mortgagor an undivided interest of one-third, upon his paying a corresponding amount of the purchase-money.
In a third casef the agreement was between a senior and a junior mortgagee. The former agreed to bid the amount ‘of his debt for a specific part of the mortgaged premises.
In each of these cases the arrangement was sustained upon full consideration by the highest judicial authority of the State.
In the case before us the agreement was, that Wicker should bid. There was no stipulation that Hoppock should not. There was nothing which forbade Hoppock to bid, if he thought proper to do so, and nothing which had any tendency to prevent bidding by others. The object of the contract obviously was to be secure—not to prevent bidding. The benefit and importance of the arrangement to the interests of the judgment debtors is made strikingly apparent when the subject is viewed in the light of the consequences which followed the breach of the agreement. Instead of the property selling for the amount of the judgments, Hoppock was the only bidder, and the property sold was struck off to him for a nominal sum.
There was no error in the ruling of the court upon this subject.
It is urged that the court erred in instructing the jury,
that if the plaintiff was entitled to recover, the measure o damages was the amount of the judgments, with interest and the cost.
*
The general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong’had not been committed. In some instances he is made to bear a part of the loss, in others the amount to be recovered is allowed, as a punishment and example, to exceed the limits of a mere equivalent.
It has been held that, “ where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach thereof, at a trifling expense or with reasonable exertions, it is his duty to do it; and he can charge the delinquent party with such damages only, as with reasonable endeavors and expense, he could not prevent.”*
If the contract in the case before us were one of indemnity, the argument of the counsel for the plaintiff* in error would be conclusive. In that class of cases the obligee cannot recover until he has been actually damnified, and he can recover only to the extent of the injury he has sustained up to the time of the institution of the suit. But there is a well-settled distinction between an agreement to indemnify and an agreement to pay. In the latter case, a recovery may be had as soon as there is a breach of the contract, and the measure of the damages is the full amount agreed to be paid.
In a note of Sergeant Williams to Cutler and others v. Southern and others, it is said that in all cases of covenants to indemnify and save harmless, the proper plea is non damnificatus, and that if there is any injury, the plaintiff* must reply it, but that this plea 11 cannot be pleaded, when the condition is to discharge or acquit the plaintiff, from such bond or other particular thing, for the defendant must set forth affirmatively the special manner of performance.”!
n Port v. Jackson,J the assignee of a lease covenanted to
Miller v. Mariners’ Church, 7 Greenleaf, 56; Russell v. Butterfield, 21 Wendell, 304; Ketchell v. Burns, 24 lb. 457 ; Taylor v. Read, 4 Paige, 571; United States v. Burnham, 1 Mason, 57. t Sanders, 117, note 1. | 17 Johnson, 239.
----------------- r
fulfil all ‘the cove^rhnts which the lessee was bound to perfornvy^It wa^pheld that the agreement was substantially a CQyhbant to pay the rent reserved, as it should accrue; that apfea of non dan^icatus was bad, and that the assignor could recover the amdhnt of the rent in arrear as soon as a default oc«iuwed, without showing any injury to himself by the deJJi^uency of the assignee. The assignee was liable also to tne lessor for the same rent by privity of estate. The judgment was unanimously affirmed by the Court of Errors.
In The Matter of Negus,* the covenant was to pay certain partnership debts, and to indemnify the covenantee, a retiring partner, against them. It was held that the covenant to indemnify did not impair the effect of the covenant to pay, and the same principle was applied as in the case of Port v. Jackson. We might refer to numerous other authorities to the same effect, but it is deemed unnecessary.
In the case before us, as in the cases referred to, the defendant made a valid agreement, in effect, to pay certain specific liabilities. They consisted of the judgments of Hoppock against Chapin & Co. If Wicker had fulfilled, the judgments would have been extinguished. As soon as Hoppock performed, the promise of Wicker became absolute. No provision was made for the non-performance of Wicker, and the further pursuit by Hoppock of the judgment debtors. Indemnity was not named. That idea seems not to have been present to the minds of the parties. The purpose of Hoppock obviously was to get his money without the necessity of proceeding further against Chapin & Co. than his contract required. There is no ground upon which Wicker can properly claim absolution. He removed and keeps the property he was to have bought in. The consideration foi his undertaking became complete, when it was exposed to sale. The amount recovered only puts the other party where he would have been if Wicker had fulfilled, instead of violating the agreement.
The rule of damages given to the jury was correct.
Judgment affirmed.
United States v. Adams. Same v. Johnson. Same v. Clark.
1. The act of March 3, 1863, concerning the Court of Claims, confers a right of appeal in cases involving over $3000, which the party desiring to appeal can exercise by his own volition, and which is not dependent on the discretion of that court.
2. "When the party desiring to appeal signifies his intention to do so in any appropriate mode within the ninety days allowed by that statute for taking an appeal, the limitation of time ceases to affect the case; and such is also the effect of the third rule of the Supreme Court concerning such appeals.
3. It is no ground for dismissing such appeal, that the statement of facts found by the Court of Claims is not a sufficient compliance with the rules prescribed by the Supreme Court on that subject.
4. But the Supreme Court will of its own motion, while retaining jurisdiction of such cases, remand the records to the Court of Claims for a proper finding.
5. A finding which merely recites the evidence in the case, consisting mainly of letters and affidavits, is not a compliance with the rule; but a finding that a certain instrument was not made in fraud or mistake is a proper finding without reporting any of the evidence on which the fact was found.
These were three motions; the first two to dismiss appeals from the Court of Claims, one in the case of Adams, and one in the case of Johnson; the third, in the case of Clark, a motion for a certiorari designed to require that court to make a more extended statement of the evidence on which they had made a particular finding. The motion in the first two cases resting on more grounds than one; in the third, on one ground only.
To understand the cases well, it is necessary to refer to the statutes and rules which regulate appeals from the Court of Claims. An act of March 3,T863, provides that “ either party may appeal to this court, &c., where the amount in controversy exceeds $3000, under such regulations as the said upreme Court may direct: Provided, That such appeal shall e ^ken within ninety days after the rendition of such judgment or decree.”
At the December Term, 1865, the Supreme Court prescribed certain regulations by which appeals might be taken.
The first rule prescribes that the Court of Claims shall make a finding of the ultimate facts or propositions which the evidence! shall establish, in the nature of a special verdict, and not the evidence on which these ultimate facts are founded, and also conclusions of law, which findings of fact and conclusions of law shall be certified to the Supreme Court as part of the record.
The third rule prescribes that in all cases an order of allowance of appeal by the Court of Claims, or the chief justice thereof, in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.”
The forty-eighth rule of the Court of Claims provides that “ whenever such application for an appeal is made in vacation, the same shall be filed with the clerk of this court, and such filing shall be deemed the date of the application for an appeal.”
The act of March 3, 1863, provides « that the said Court of Claims shall hold one annual session, commencing on the first Monday in October in each year, and continuing as long as may be necessary for the prompt disposition of the business of the court;” and an act of March 17, 1866, “ that the regular session of the Court of Claims shall hereafter commence on the first Monday of December, in each year.
In this state of statutes and rules, judgment was rendered by the Court of Claims in the case of Adams in his favor on the 19th March, and in the case of Johnson, on the 25th. The court adjourned on the 20th of May to the 25th of June. On the 10th of June the solicitor of the United States for the Court of Claims, Mr. Norton, filed in the office of the clerk, a paper, in the case of Adams, of which the following is a copy:
* Theodore Adams v. The United States.
1886.
The United States, by E. P. Norton, its solicitor, makes application to the Honorable Court of Claims for an appeal o 0 p. 103case of Theodore Adams v. The United States, to the Supreme Court of the United States.
E. P. Norton,
Solicitor for the United States.
A simila.” paper was filed in the case of Johnson, at the same time. On the first day that the court was in actual session, to wit, on the 25th day of June, the solicitor moved for an allowance of these appeals, and on the next day the court made an order allowing them. The order was thus made more than ninety days after the judgments were rendered.
In these two cases, therefore, grounds of motion to dismiss were:
1. Because the appeal must be taken within ninety days after the rendition of the decree, and in this case the said period has elapsed.
2. Because the taking of an appeal in cases decreed by the Court of Claims consists of two things: 1st. Of an application for an appeal, which may be made to the court in term time, or by filing an application in the method prescribed by the rules when made in vacation. 2d. Of an allowance of the appeal so applied for by the court, and that both the application for and the allowance of the appeal must be made within the said term of ninety days from the rendition of the decree.
3. Because the application made for an appeal in this case, and filed in the clerk’s office June 10, 1867, is irregular and void, having been made in term time, and not in vacation, as contemplated by the rules of court.
And in all three of the cases an additional ground was assigned, viz.:
That the record had not been made up and settled, as the first rule of the Supreme Court, made at December Term, 1865, required.
As to this part of the matter it appeared—
1« In the Adams case, that the findings were put under wenty different numbered paragraphs; that under one of p. 104them a joint resolution of Congress was set out in full; and under others, parts of acts of Congress. Withal, the finding made a sequent,, orderly and intelligible statement, and was comprised within less than six pages 8vo, chiefly of small pica type.
2. In the case of Johnson, the form of finding was different. Somewhat less than two pages were occupied with narrative and clear account of a settlement by him upon valuable and unoccupied public lands in Washington Territory, where he erected buildings, which the government of the United States, operating against hostile Indians, had taken to its own use. But the rest of the finding consisted of nine pages of Government Correspondence from the Land Office, Department of the Interior, Register’s Office at Vancouver, with various affidavits from settlers and others, a joint resolution of Congress, and many other documents, about twenty in all, set out in extenso, signatures, &c., with very little in the nature of a finding of ultimate facts. It ended with a succinct statement of the court’s conclusions of law, on what was called “ findings of fact.”
3. In the case of Clark,—where the motion was for a certiorari to require the Court of Claims to make a more extended statement of the evidence on which they found,—no documents or evidence were set out. On the contrary, the petition having set forth that the petitioner having agreed by correspondence, with its authorized agents, to furnish to the government a certain quantity of potatoes, in a certain manner, the government agents had afterwards prepared formal articles of agreement, which he signed without advice of counsel, and not knowing at the time but that they truly and fairly stated the actual agreement of the parties, and that the contract was not truly stated in the articles, but by mistake or fraud was misstated,—the finding on this head ran thus:
n That the allegations of fraud or mistake in the concoction of the written agreement is not sustained by the evidence in the case.”
Argument for dismissal.
Messrs. Carlisle, Corwine, and Wills, in support of the motion to dismiss the appeals of Adams and Johnson:
I. As to the regularity of those appeals. The statute gives an appeal under such regulations as this court may prescribe. The regulations when prescribed are as if part of the statute. By the terms of the statute, the appeal must be taken within ninety days. No regulation can alter this. The time is peremptory. In this case no appeal was “ taken,” “allowed,” or even prayed for, till the ninety days had expired. All the party did was to pray an appeal generally, and of this jurisdiction cannot be taken.
There was no “vacation” between the 20th May and the 25th June. By the act of March 3d, 1863, and that of 17th March, 1866, the term is limited, but its duration is without limit. The “ vacation,” therefore, referred to in the rule under consideration, had not occurred when this application was filed with the clerk: on the contrary, the court was in session.
A vacation is defined by Bouvier to be the period of time between the end of one term and the beginning of another.* A vacation is a different thing from a continuance, the result of an ordinary adjournment.f Adjournment, in the English practice, is a day so called from its being a further day appointed by the judges at the regular sittings to try causes at nisi prius. Adjournment day in Error, in English courts, is a day appointed some days before the end of the term, at which matters left undone on the affirmance are finished. But the whole term is considered as but one day. oo, no vacation having occurred, the application should have been made to the court, the only tribunal or authority at that time authorized to receive and hear it.
II. As to the forms of the findings in all three cases, and of the motion for certiorari in. the third. The object of the rule laid down by the Supreme Court was to get a clean, clear narrative of ultimate facts, a case like a case stated, or agreed on or found by special verdict, so that the court could give an
* 2 Law Dictionary. f 1 Id-
Argument against dismissal.
opinion, in a form perfectly abstract, upon that case, and without any arguing of what the case was, or summoning up or back of facts. In the case of Adams, and especially in that of Johnson, the first and second cases, we have evidence of facts; leaving this court to settle the facts, a matter which it was the purpose of the rule to relieve it of. In the case of Clark, the finding is objectionable in the other way; that is to say, from its curtness. A certiorari to bring up a fuller case is necessary.
Mr. Norton, Solicitor of the Court of Claims, contra:
I. As to the appeals of Adams and Johnson. The appeal is taken when the application is made; for what else can the applicant for an appeal do ? He has no bond to give, no additional act to perform; no control over any subsequent proceeding. The order of allowance may be made at any time.
The rule of the Supreme Court does not prescribe how the application shall be made, whether in open court orally, or by the filing of an application with the clerk, but that the making of the application, whether in the one mode or the other, shall be all that is required from the appellant.
The statute allowing ninety days would be nugatory, if the appellant had not been permitted to file his application with the clerk. If the court be not in session or the chief justice is absent, there is no other mode of taking an appeal.
It is contended that there can be no vacation until after the final adjournment sine die. But the act of March 17th, 1866, in providing that the regular session of the Court of Claims should be on the first Monday of December in each year, contemplated that there might be irregular sessions.
In the early period of the history of English courts, vacations of courts had no regularity, and the word was sometimes applied to the interval of a portion of a day. The words interval, recess, and vacation, are synonymes.
TT. The objections to the finding seem to be too technical. As to the cases of Adams and Johnson, if requiring to be rectified, the findings can be rectified by a remand, and wit out dismissing the cases. As to the case of Clark, w
a certiorari is asked to enlarge the finding, the finding seems in precise right form.
Mr. Justice MILLER delivered the opinion of the court.
Motions are made in the case of United States v. Adams, and of the Same v. Johnson, to dismiss the appeals, upon the ground that they were not taken within the ninety days to which the act of Congress limits the right of appealing from the judgments and decrees of that court.
The fifth section of the act of March 3,1863, under which the proceedings in appeal were had, enacts that “ either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court, wherein the amount in controversy exceeds three thousand dollars, under such regulations as said Supreme Court may direct: Provided, that such appeal shall be taken within ninety days after the rendition of such judgment.”
This language implies that taking an appeal is a matter of right, and is sornething which the party as distinguished from court may do. When the court has rendered its judgment “either party may appeal.” That is, has the right to appeal, and may exercise that right by his own volition. The court cannot prevent it, nor is the right dependent upon any judicial discretion.
So also the language of the proviso is to the same purport. The appeal is to be taken within ninety days, not granted, or allowed, or permitted, but taken—a word which implies action on the part of the appellant alone. So that, whatever the proceeding may be which constitutes appealing, or taking an appeal, it must be something which the party can do; and it would seem that no regulation of the Supreme Court, nor any judicial discretion of the Court of Claims, can deprive him of the right, though the former may frame appropriate rules in accordance with which the right must be exercised.*
*
Hudgins et al. v. Kemp, 18 Howard, 530; Dos Hermanos, 10 Wheaton, 306; The Enterprise, 2 Curtis C. C. 317.
We consider the paper filed by the solicitor in the office of the clerk of the court as sufficient in form to indicate the intention to exercise this right. It is addressed to the court, refers properly to the case, claims an appeal, and calls upon the court to take the action which the rules prescribed by the Supreme Court require of it.
But it is claimed that the rule so prescribed has not been complied with, and therefore the appeal is not taken within time. The third rule, the one here referred to, is this: “ In all cases an order of allowance of appeal by the Court of Claims, or by the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.”
The language of the rule would have been more technically accurate if the word “taking” had been used instead of “ granting,” but the latter word is used in the rule to express the idea conveyed by the former in the statute.
To understand why the Supreme Court required an allowance of the appeal by the Court of Claiffis it is necessary to consider the two rules which precede this. A statute passed a year or two after the one we have been considering gave the right of appeal in cases where judgments had been rendered long previous to its passage. In framing rules upon this subject the Supreme Court determined that these rules should be so drawn that only questions of law could be brought here for review. The first rule provided that the party desiring to appeal, in cases decided before the rules were made, should present his petition to the Court of Claims, setting forth the questions of law decided against him which he desired to have reviewed; and that court was required to certify what had been its rulings on those questions. By the second rule the court was required, in all appealable cases thereafter decided, to make a finding of tacts, and of their conclusions of law thereon, and make it a part of the record.
It is obvious that in both of these classes of cases it was proper that the attention of the court should be called to the p. 109taking of an appeal, and that it should not be treated as perfected until that court had prepared the statement of facts, or the statement of its rulings on questions of law which these rules prescribed. If something of this kind had not been required, the appeal might have been taken and the record filed in this court before the rule had been complied with.
But that the delay in doing this might not prejudice the party desiring to appeal, the rule expressly provides that the statute of limitations shall cease to run from the time the application is made. In other words, the framers of the rule, treating the appeal as taken within the meaning of the statute when the application is made for its allowance, provide that the delay in making out a proper statement of facts and judicial rulings, and then allowing the appeal (which C. J. Taney says, in Hudgins v. Kemp, “ is merely an authority to the clerk to transmit the record”), shall not operate to defeat the appeal.
Much minute criticism has been expended on the question whether the adjournment of the court from May to June was a vacation within the meaning of the rule, and whether the application should have been made to the court or to the chief justice. The rule says, the allowance may be made by the court, or, if there is a vacation, by the chief justice, but it does not prescribe the form of the application, or how or to whom it shall be made. We think that whether done in vacation or in session, or during a temporary recess, the rule adopted by that court of requiring the application to be made by filing it with the clerk, is a very proper one.
We are therefore of opinion that-the filing of this paper was taking the appeal, and that the delay in the subsequent proceeding to render it effectual do not touch its validity.
Another ground for the motion to dismiss these cases is, t at the statement of facts found by the court, and their conclusions of law thereon, are not a sufficient compliance wit the rule of the Supreme Court on that subject. It is 8ai that the statement of facts is a mere recital of the evieuce, and not the results of evidence as found by the court.
Conceding for the present that these records are fairly liable to the objection made, does it follow that for this reason the appeals should be dismissed ?
In discussing the first ground on which the dismissal of these cases is claimed, we have seen that an appeal is a right given to the party by the statute, of which the Court of Claims cannot deprive him. It would be a violation of this principle if this court should refuse to consider his appeal, because the Court of Claims has erred in its attempt to comply with a rule of this court prescribing the character of the record to be sent here.
If the Court of Claims had made no attempt to comply with this part of the rule, we do not perceive how that would deprive this court of its jurisdiction of the case, or the appellant of his right to be heard. In such case, there is undoubtedly in this court, as in all appellate courts, a means of enforcing compliance with the rule, without permitting its jurisdiction, or the rights of appellant, to be defeated. But there is no such case here. The Court of Claims has made a finding of facts, and conclusions of law, and has shown its intention to comply in good faith with the rule of this court. Whether it be a sufficient compliance or not, is a question which does not affect the jurisdiction of this court, and is no ground for dismissal of the cases. The motions to dismiss are therefore overruled.
The rule above referred to, however, was made for the protection of this court, as well as to secure a finding of facts, by a tribunal which must of necessity inquire into them fully, and which, having ample time, and being otherwise every way competent, may be relied on to find them truly. In consequence of the suggestions of counsel in these cases, and in several others, said to be in the same category, we have examined into the statement of facts certified to us, to see if the rule is complied with. In all that we have ex* amined,-except the two named at the head of this case, the statement is free from objection. In the case of Unite
* Supra, p. 101.
Dec. 1867.] United States v. Adams. Ill
States v. Adams, the propositions of fact are stated more in extenso than is either necessary or desirable, and are subdivided into a greater number of distinct propositions than are useful or conducive to clearness.
There are also certain acts and joint resolutions of Congress found as facts, of which this court must take judicial notice, which are, therefore, in no sense, facts to be found.
But after all, there is within a reasonable compass, and fairly stated, the main ultimate propositions of fact, on which this court can determine the principles of law, which must control the case.
But in the case of United States v. Johnson, it is different. We have first a detailed history of Johnson’s transactions in settling on certain land, which is the foundation of his claim, with no attempt to deduce from this recital any ultimate fact, to which a proposition of law can be applied. This is followed by from fifteen to twenty affidavits and letters, given in full, from various officers in the department of the public lands, and other persons. What facts these letters and affidavits are intended to establish, we have not stopped to inquire, because it was the object of the rule to impose upon the Court of Claims the duty of drawing the inferences and conclusions which such documents are supposed to establish, or to decide that they do not establish them. The statement in this case is, in this respect, a reproduction of the finding which we rejected in the case of Burr v. The Des Moines Navigation Co.,* to which this court refers in the rules as containing a judicial exposition of the principles on which they are founded.
Ao doubt it is often difficult to draw the line between a niere recital of the evidence produced in the case, and a finding of the facts which that evidence establishes ; and where t e statement certified by the Court of Claims is reasonably sufficient, we hope we shall not be found captious. But in t e case we have mentioned, there is such a wide departure rom the principle which lies at the foundation of the rule,
* 1 Wallace, 102.
Syllabus.
that while we shall retain jurisdiction of the case, the record will be remanded to the Court of Claims, with directions to return a finding of the facts, in accordance with the rule.
These principles also dispose of the motion for certiorari in the case of Clark et al. v. United States. The motion there is designed to require the Court of Claims to make a more extended statement of the evidence on which they find, “ that the allegation of fraud or mistake in the concoction of the written agreement is not sustained by the evidence in the case.”
This is precisely the character of finding which the rule of this court was intended to produce. The existence of the fraud or mistake set up in the pleading is one of the ultimate facts to which the law of the case must be applied, in rendering a judgment, and this court does not purpose to go behind the finding of the Court of Claims on that subject. To do so would require an examination of evidence, and a comparison of the weight to be attached to each separate piece of testimony, and the drawing of inferences from the whole, which is the peculiar province of a jury, and which, by our rule, we intended to exclude from the consideration of this court, by making such finding by the Court of Claims conclusive. The motion in that case is, therefore, overruled.
Motions overruled in all the cases, but in the second case the record remanded with directions to make a new finding of facts in accordance with the rules of court on the subject.