Herbert v. Butler, 97 U.S. 319

Herbert v. Butler.

1. A paper incorporated in the record, and certified to be a part thereof by the court below, if it has all the requisites of a bill of exceptions, will be considered here as such, although it be otherwise entitled.

2. Where the burden of proof is on the plaintiff, and the evidence submitted to sustain the-issue is such that a verdict in his favor would be set aside, the court is not bound to submit the case to the jury, but may direct them to find a verdict for the defendant.

Error to the Circuit Court of the United States for the Eastern District of New York.

This was an action brought by Herbert for money had and received for his use by Butler. Plea, general issue. The parties were the only witnesses in the case. Judgment for the defendant. Herbert sued out this writ of error.

The facts are stated in the opinion of the court.

Mr. Jasper K. Herbert for the plaintiff in error.

Mr. Justice Bradley delivered the opinion of the court.

here are two questions in this case : first, whether there is any bill of exceptions by which we are authorized to look into 1 e proceedings at the trial; and, secondly, whether, if there is such a bill, there is any ground for reversing the judgment.

irst, Is there a bill of exceptions ? The document relied f fi / in error as constituting such a bill, and cer-1 e from the court below as part of the record, is appended e record of the pleadings and judgment, and commences as follows : _

The following case and exceptions is agreed on by the ornejs for Jasper K. Herbert, plaintiff, and Benjamin F.

If this paper had been entitled a “ bill of exceptions,” instead of a “ case and exceptions,” there could not be any doubt that it would be a sufficient bill. It has all the requisites of a bill, except the mere name. A seal is not required, being expressly dispensed with by the act of 1872 (17 Stat. 197; Rev. Stat., sect. 953 ); and we had before decided that a seal is not essential in the courts of the United States. Generes v. Campbell, 11 Wall. 193. It has the sanction and signature of the judge, and, though settled after the trial, it was agreed upon by the parties; and hence it is free from objections which have prevailed in other cases. Generes v. Bonnemer, 7 id. 564; Graham v. Bayne, 18 How. 60. We think it is a sufficient bill of exceptions.

Secondly, Was any error committed in the ruling of the judge ? The bill of exceptions shows that, after the evidence was concluded on both sides, the judge directed the jury to find a verdict for the defendant. To this direction the plaintiff excepted, and it is the only error assigned here. The evidence is all set out in the bill, and the question is, whether the judge erred in not submitting it to the jury.

We decided in Improvement Company v. Munson (14 Wall. 442) and Pleasants v. Fant (22 id. 116), that although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render. As the question is fully discussed in those cases, it is unnecessary to repeat the discussion here. , .

After carefully examining the evidence, we are of opinion that it justified the direction given.

The plaintiff further produced Lamar’s check to the defendant’s order for the sum of $25,000, dated April 16, 1874, and the defendant’s receipt, dated April 17, 1874, in the following words: —

“Received, Washington, April 17, 1874, of Gazaway B. Lamar, twenty-five thousand dollars ($25,000), in full for retainer and services as counsel in the trial of his case against Albert G. Brown and others, in the Circuit Court of the United States for the First Circuit, at Boston, and also in the preparations of the bill of exceptions and entry of the same in the Supreme Court of the United States, and also for retainer and argument of motion to dismiss the case in the Supreme Court of the United States, appellant, against him, from the judgment of the Court of Claims, and services in preparing a motion for dismissing the appeal, this being in full of all services and demands due by said Lamar up to and including the date on which said appeal was dismissed.

“Benj. F. Butler.”

The defendant, in his testimony, admitted the fact that he was employed by Lamar, through the plaintiff, in the matter of dismissing the appeal; he also admitted the receipt of the $-5,000, but stated that he received this money in settlement o his own services alone ; that he had been engaged in various other professional matters for Lamar, both before and after the ismissal of the appeal, and that his fees for these services were all included in the amount; and that he never received any thing from Lamar for the plaintiff. In addition to this, e produced in evidence a letter from the plaintiff to himself, ate April 9, 1874, and his answer thereto, dated April 12,

’ of which the following are copies: —

“Law Offices of Herbert & Wilber,

“ 58 Broadway, New York, April 9, 1874.

“My dear Gen.,—I am glad to see that Lamar’s appeal is dismissed.

“ He agreed with me to pay $20,000 to have it dismissed; this with me. I immediately went to Washington and employed you. When you asked me, ‘What about fees?’ I replied, ‘You can have $5,000 or $10,000 if you like. I have an agreement with Lamar.’ You said ‘ All right; on that assurance I will go to workand we started off for the Attorney-General’s office.

“ Subsequently you told Lamar that ‘ I (you) must command the ship, or you would not sail,’ or words to that effect.

“ Since that time I have left the matter with you.

“Now I want to have you understand in relation to this matter, as I stated to you before leaving Washington, that Lamar’s agreement is for $20,000 to have the appeal dismissed. I want you to collect the money and send me a check for any portion to which you may think me entitled.

u I advised Lamar, when in Boston, to employ you and me in this case. The employment did not come until others had failed, which made it more difficult.

“Nevertheless, the agreement between L. and myself, before I would call on you in regard to it, was as I have stated.

“ Lamar is in Washington, and I leave the balance to you.

“ Yours truly, J. K. Heebeet.

“ Hon. B. F. Butler,

“Washington, D. C.”

“House of Representatives,

“ Washington, D. C., April 12, 1874.

“ Sir, — I have no power or authority to collect money in the case of Mr. Lamar, nor can I collect your fees.

« very truly yours, Benj. F. Butleb.

“ J. K. Herbert,

“ 58 Broadway, New York.”

It was after this correspondence, and after the defendant ha settled with Lamar, that the plaintiff (as testified by him) called on Lamar, and was informed by him that he had pm the defendant; and that the defendant, on being applied to, admitted the receipt of the money, but denied having receive any thing for the plaintiff.

Now, it is evident from this outline of the evidence that upon the issue made by the pleadings, namely, whether the defendant received any money for the use of the plaintiff, there was no necessary conflict in their testimony. The plaintiff may think that the defendant ought to have collected his (the plaintiff’s) fees, as well as his own. But he cannot deny that the defendant expressly refused to do so when applied to for that purpose; and he does not, for he cannot, deny that the defendant (as he says, and as his receipt shows) may, in fact, have settled his own fees alone. Lamar’s declaration cannot affect the defendant, especially in view of the express language of the receipt taken by him. Therefore, as the burden of proof was on the plaintiff to sustain the issue, and as the whole evidence taken together does not sustain it on his part, but the only direct evidence on the subject — namely, the testimony of the defendant, and the receipt given by him to Lamar — is to the contrary, the judge properly directed the jury to find for the defendant.

The minor points in which there may have been a conflict in the testimony of the parties do not affect the main question.

The “City of Hartford ” and the “Unit.”

• A steamboat collided with and sunk a schooner towed by a tug. The owner of the schooner and the owner of her cargo severally libelled the steamboat and tug, both of which were found to be in fault. Held, that each libellant was entitled to a decree against each of the offending vessels for a moiety o bis damages, and for interest and costs, with a proviso that if either of said vessels was unable to pay such moiety, then he should have a remedy over against the other vessel for any balance thereof which might remain unpaid. • The Alabama and the Game-cock (92 U. S. 695) and The Virginia Ehrman and the Agnese (supra, p. 309) reaffirmed.

The court, on final hearing, entered a decree in the first case that the,libellants recover from the “ City of Hartford ” the sum of $4,119.04 damages, with $56.29 interest and $234.19 costs; and dismissed the libel as to the “ Unit,” with costs against the libellants. In the second case, the court dismissed the libel as to the “ Unit,” and decreed that Robinson recover from the “City of Hartford” $3,407.79 damages, with $8.52 interest and $142.64 costs. The owners of the schooner thereupon appealed to the Circuit Court from so much of the decree as dismissed their libel against the “ Unit,” and awarded costs against them. The company appealed from the entire decree in each case. Robinson did not appeal. The Circuit Court, upon hearing, entered in the first case a final decree, reversing that of the District Court, which dismissed the libel as to the “ Unit ” and awarded costs to the claimants, and ordering and adjudging that the libellants recover of the “City of Hartford the sum of $2,087.67, being one-half of the damages sustained by the collision, together with interest thereon and the costs of seizure, and one-half of the general costs, making in all $2,674.54; that they recover of the “Unit” $2,087.67, “being the other one-half of the damages,” with interest, and the costs specially incurred by the proceedings against her, and one- a of the general costs, amounting in all to $2,787.54.

In the second case, the decree of the District Court was mo i fied, and it was ordered and adjudged that Robinson recover against the “ City of Hartford ” the sum of $1,856.66, being

Oct. 1877.] The “ City of Hartford ” and the “ Unit.” 825

one half-part of the damages sustained by him by reason of the collision, including interest thereon to the date of the decree of the District Court, and the sum of $337.14 interest on said half-part to the date of the decree of the Circuit Court, and so much of his costs against said steamboat in the District Court as were incurred in the seizure, amounting to $102.90, with $18.60 interest thereon, together with one-half of the general costs of the Circuit Court, taxed at $14.35, amounting in all to $2,329.65.

From these decrees the Hartford and New York Steamboat Company, claimants of the steamboat, and Robinson, severally appealed to this court.

Mr. R. H. Huntley for the steamboat company.

Mr. Joseph H. Choate for the owners of the schooner, and Mr, Henry J. Scudder for Robinson.

Mr. Justice Clifford delivered the opinion of the court.

Freedom from fault is a good defence in a cause of collision, even when the suit is promoted to recover compensation for injuries received by an unoffending party ; but the innocent party, if the collision was occasioned by the fault of the other vessel or vessels, is always entitled to full compensation for the injuries received, unless the loss exceeds the amount of the interest which the owners have in the offending ship or ships

and the freight pending at the time of the collision. 9 Stat. 635; The Atlas, 93 U. S. 302. Sufficient appears to show that the schooner was on a voyage rom Baltimore to Portsmouth, N. H., laden with a cargo of corn, and that she put into the port of New York, by reason of s ress of weather; that while there those in charge of her navith °n emPl°yed the steam-tug to tow her from her anchorage

d Pass ca^ed Hell Gate, and that the steam-tug unth t°tli Pei^orm toat service for a reasonable compensation ;

Bad seamanship and unskilful navigation are imputed both to the steamer and the steam-tug, and the claim is that they are both bound to make good the damage sustained by the libellants.

Process was issued, and both the steamer and the steam-tug were attached by the marshal. Interlocutory proceedings will be omitted, as they are not material to the questions involved in the assignment of errors, except to say that the respective claimants of the respondent steamers appeared and filed answers to the libel. Testimony was taken on both sides; and after hearing, the District Court ordered a decretal order against the steamer, in favor of the libellants, and dismissed the libel as to the steam-tug, holding that the steamer was wholly in fault.

Owners of the cargo in such a case may, if they see fit, join with the owners of the vessel in promoting the cause of collision, or they may sue separately, at their election. In this case they filed a separate libel, in which they charged that the collision was occasioned both by the steamer and the steani-tug, and that both were bound to make good their loss. Service was made, and the claimants of both respondent vessels appeared and filed answers. Proofs being taken, they went to hearing; and the District Court entered a decree as in the preceding libel, holding that the steamer was wholly in fault, and dismissed the libel as to the steam-tug. Separate references were made to the master, whose respective reports were subsequently confirmed by the court.

By the final decree, the libellants in the first case recovered $4,119.04, with taxed costs, and the libellant in thé second case recovered $3,704.79, with interest and taxed costs; and all par ties except the libellant in the second case appealed to t e Circuit Court.

Pursuant to that order, the decree against the steamer was for the sum of $2,080.67, for half the damages sustained by the libellants, including interest, with costs as therein taxed; and the charge against the steam-tug was for the same sum, with interest and costs, as in the case of the steamer. In the second case, also, the decree was in favor of the libellants, upon the ground that both the steamer and the steam-tug were in fault, as in the other case, where the libel was promoted by the owners of the schooner.

Due computation of the loss sustained by the owner of the cargo, who was the libellant in the second case, was made in the District Court, and the Circuit Court adopted that computation as correct. As there made, it amounted, with interest, to the sum of $3,713.13, besides costs as taxed; but the Circuit Court adjudged and decreed that the libellant recover of the steamer the sum of $1,856, being one-half of the damages sustained by the libellant, including interest to date of the decree in the District Court, and the sum of $337.14, “ for interest on half-part ” to the date of the decree, with costs and interest thereon, as more fully set forth in the decree.

Evidence of a decisive character appears in the record to show that the circuit judge concurred with the District Court that the steamer was in fault, and that her fault contributed to the collision which caused the loss sustained by the respective libellants, but that he was unable to concur that the steam-tug was without fault. Instead of that, he was of the opinion t at those in charge of the navigation of the steam-tug saw the s earner as she was coming down the river, at such a distance as would have enabled the steam-tug to have made any necessary manœuvre to avoid the collision.

Beyond all question, he was of the opinion that both the respondent vessels were in fault, which, by all the authorities, presents a case where each should be adjudged liable for a moiety ° the damages. By the decree the steamer is adjudged liable °r half the damages; but the libellant, though admitted to be W1t out fault, has no decree whatever for the other half, or for any more than half of the costs.

Appeal was taken to this court, by the claimants of the steamer, from the decree of the Circuit Court in each case. In the second case, the libellant, owner of the cargo, appealed from the decree therein rendered.

Argument to show that the decree of the Circuit Court in the first case is correct is scarcely necessary, as both courts concur that the steamer was in fault, and the owners of the steam-tug have not appealed.

Suggestion is sometimes made that this court will, as a matter of course, affirm the decree of the Circuit Court where the decree of the Circuit Court affirms the decree of the District Court; but the court has never adopted any such rule of practice.

Where the appeal involves a question of fact, the burden in such a case is on the appellant to show that the decree in the subordinate court is erroneous; but it is a mistake to suppose that this court will not re-examine the whole testimony in the case, as the express requirement of the act of Congress is that the Supreme Court shall hear and determine such appeals, and it is as much the duty of the court to reverse the decree from which the appeal is taken for error of fact, if clearly established, as for error of law. The Baltimore, 8 Wall. 377; The Maria Martin, 12 id. 31 ; The Lady Pike, 21 id. 1.

Neither the evidence exhibited in the record nor the suggestions of counsel contained in the brief filed by the appellants have had the effect to create any doubts in the mind of the court that the conclusion of the subordinate courts that the steamer was in fault is correct. Nor do we deem it necessary to repeat the reasons given by those courts in support of the decrees in that regard.

Before examining the appeal and cross-appeal in the other case, it should be remarked that it is settled law that wrongful acts done by the co-operation and joint agency of two or more parties constitute them all wrong-doers, and that parties in a collision case, such as shippers and consignees, bear no part of the loss in such a disaster, and are entitled to full compensation for the damage which they suffer from the wrong-doers, except in the case where their loss exceeds the amount of the interest which the owners of the offending ship or ships have in them, and in the freight then pending.

Suppose the value of each vessel in such a case is equal, or more than equal, to a moiety of the damages, interest, and costs found due to the libellant, then it is clear that the decree should be for a moiety of the same against each of the offending vessels, with a provision that if either party is unable to pay his moiety of the damage, interest, and costs, the libellant shall have his remedy over against the other party. The Atlas, 93 U. 8. 302; The Alabama and the Game-cock, 92 id. 695; The Washington and the Gregory, 9 Wall. 513/ The Virginia Phrman and the Agnese, supra, p. 309.

Apply that rule to the present case, and it is clear that the decree in the second case should be modified by inserting the provision, that if either party is unable to pay his moiety of the damage, interest, and costs, the libellant may have his remedy over against the other; and that a further decree be entered, that the libellant do recover against the steam-tug, her tackle, apparel, and furniture, the sum of $1,851.66, being one half-part of the damages sustained by the libellant by reason o the collision in the pleadings mentioned, including interest thereon to the date of the decree of the District Court, and the th01^ I°r the interest on said half-part to the date of e ircuit Court decree ; and that the libellant do also recover 0 the steam-tug one-half of the costs of said libellant incurred lu e District Court in the seizure of the steam-tug, with interest on the same to the date of the Circuit Court decree, together it one-half of the costs of the Circuit Court as there taxed;

Owners of ships and vessels are not liable, imder existing laws, for any loss, damage, or injury by collision, if occasioned without their privity or knowledge, beyond the amount of their interest in such ship or vessel and her freight pending at the time the collision occurred; but the decree in a proceeding in rem against the vessel is not a decree against the owner, nor will it render the owner liable in such a case for any greater amount than what the act of Congress limiting the liability of such owners allows. Such a decree in such a case is merely the ascertainment of the damage, interest, and costs which the libellant has sustained by the collision, and which he is entitled to recover, provided the interest of the owners in the colliding vessel or vessels is sufficient to pay it, and not otherwise.

Suffice it to say that the libellant in such a case and in such a proceeding is entitled to recover for the loss which he sustained by the collision, whether the offending vessel is or is not of a value sufficient to discharge the amount. Admiralty courts, where there are two offending vessels, may undoubtedly divide the damages between them; but the libellant in such a case is entitled to full compensation if the offending vessels are of sufficient value, and in that event the decree in each case should provide that the libellant is entitled, if either party is unable to pay his moiety of damage, to have his remedy over against the other offending vessel. The Atlas, supra.

The decree in the first case, and that in the second, as t same is modified and enlarged, by adding thereto a decree against the steam-tug for one-half part of the damage, intere > and costs sustained by the libellant, will be affirmed, an i