James Broome, Administrator De Bonis Non of Arte Macon, Deceased Plaintiff In Error v. the United States

• Citation: 14 L.Ed. 636,15 How. 143,56 U.S. 143
• Parties: JAMES E. BROOME, ADMINISTRATOR DE BONIS NON OF ARTE MACON, DECEASED, PLAINTIFF IN ERROR, v. THE UNITED STATES
• Decision Date: 01 December 1853
• Court: United States Supreme Court

56 U.S. 143 15 How. 143 14 L.Ed. 636 JAMES E. BROOME, ADMINISTRATOR DE BONIS NON OF ARTE MACON, DECEASED, PLAINTIFF IN ERROR, v. THE UNITED STATES. December Term, 1853

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

The facts are stated in the opinion of the Court.

It was submitted on a printed brief, by Mr. Charlton, for the plaintiff in error, and argued for the United States by Mr. Cushing, (Attorney-General.)

Mr. Charlton, for the plaintiff in error.

1. The first point we make is, that this bond never had a legal existence, so far as Macon was concerned. That he died before it was approved by the Comptroller of the Treasury; and having died before the time had arrived, when vitality was given to it by such approval, he was not a party to the contract; and his administrator is in no manner responsible for any default of Crane, in the discharge of his duties.

This writing obligatory belongs to that class of sealed instruments which, though not strictly escrows, yet are delivered, subject to a condition prescribed either by the parties, or the law.

By the act of Congress of 2d March, 1799, (1st vol. Little & Brown's edition, 705,) the bond of a collector of customs must be approved by the comptroller. If not so approved, it never becomes an official bond; the day of the date, we all know, is immaterial; and the manual delivery, even in such a case, coupled with the condition which the law itself annexes, does not give legal existence or vitality to the instrument. It is the approval by the Comptroller of the Treasury which breathes

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into it its legal life. It is that which shows the aggregatio mentium; it is that which makes it a contract. Commonwealth v. Kendry, 2 Barr's Rep. 448. Suppose that the comptroller had refused to approve this instrument, would it then have had any efficiency? Would it have held the persons signing as sureties, liable for any default of Crane? Certainly not; for, as to them, there had been no contract with the government; they had offered to contract, but the offer had been declined. Does not this show, conclusively, that the approval of the comptroller is the act which, for the first time, gives any life to this paper? But when that life was given to it, Macon was dead; the offer he had made to become a surety for Crane, had never been accepted in his lifetime; his death withdrew the offer, and his administrator is not bound. Chitty on Contracts, 6th Amer. Ed. p. 9, and note 2, p. 12, citing Pothier; that it may be retracted at any time before acceptance, p. 13; and that death retracts it, p. 14, citing Pothier. See, also, p. 15; Macher v. Frith, 5 Wendell, 112, 113. If a contract was made at all, it was with Macon, not with his administrator. But can a dead man make a contract? The authorities cited, refer, it is true, to unsealed instruments, but there is the same principle here. If the paper was actually delivered, it was upon the condition that it should be approved by the obligee; that it was a condition that the law attached to it, and there was no aggregatio mentium until such approval; and, in the mean time, death had retracted the offer.

We think, therefore, that his honor, in the court below, committed error in ruling that the approval of the comptroller was not the act that gave this instrument its legal vitality.

And we think, that even if we are not correct in that view, still, that he was in error in refusing the instruction asked for by the counsel for the defendant below; that it was the duty of the plaintiff below to prove that the said bond was delivered before the death of Macon.

I will not stop to argue that if this paper was signed by Macon in the presence of witnesses, but not actually delivered by him, that it never bound him. I think we will all agree that if he signed it in the presence of a thousand witnesses, who attested it as sealed and delivered, yet, that if he purposely kept possession of it himself, it did not bind him. It was, therefore, the duty of the plaintiff below to prove a delivery in the lifetime of Macon. If the fact existed, he could and ought to have proved it, as he held the affirmative of the issue. But he did not offer even prim a facie evidence. The possession of it by the comptroller would be evidence of its delivery; but when? Would it show a delivery in the lifetime of Macon? Would it

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not rather show that the comptroller did not receive it until the 31st July, 1837, the day on which he approved it; the presumptions of law being that an officer of the government discharges his duty with promptitude. 7 Howard, 132.

Though there may be evidence, then, that this instrument was belivered to bind Crane and Swain, there is none, not even prim a facie, that it was ever delivered to bind Macon. Its date does not afford that proof, for the date of a deed is not any vital part of it at all. It is equally good without a date, or with an impossible date, and this shows that a date is no legal part of it. If we were to hold otherwise, we would fall into the absurdity of being bound by the assertion of a sealed instrument that it had been made on the 30th of February. Whilst the law forbids you to contradict, add to, or vary any part of a sealed instrument by parol evidence, it allows you and requires you every day to prove the time of delivery, even though a date be stated, and even though the date of such delivery should directly contradict the alleged date of the instrument, thus clearly showing that it does not consider the date inserted as any part of the instrument.

There is not a title of proof that any officer of the government ever had the possession of this paper until the 31st July, and then, for the first time, arises the presumption of its delivery; there is no proof that any of these parties ever parted with the possession of this paper before the 31st July, 1837, when it reached the comptroller, possibly from the hands of an agent of Macon, whose power to deliver would end with the death of his principal; and it is worthy of remark that, even according to the very vague and unsatisfactory testimony offered by the United States in the court below, as to the time it would take to transmit by mail, or messenger, from Tallahassee to Washington, that this paper could have been forwarded after the death of Macon, and reached Washington by the 31st. The language of the witness being about eight or ten days for transmission by mail, and by individuals, seven or eight days. A bond may be delivered by the surety to his principal as an escrow. 4 Cranch, 221.

His honor, below, refused to give the instructions, as asked for, and ruled that the jury must be satisfied that the bond remained in the hands of Crane or the surety until after the death of Macon, thus virtually throwing the burden of proof upon as who held the negative, instead of requiring the plaintiff below to prove the act in pais, viz. the delivery necessary to give vitality to the instrument. 4 Wheaton's Rep. 77.

2. But if this bond ever was legally delivered in the lifetime of Macon, the question remains, did his principal, Crane, ever

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make such default in the discharge of the duties of his office, as would bind his sureties?

The condition of the bond is, that Crane 'shall continue truly and faithfully to execute and discharge all the duties of the said office according to law.'

What were the duties of his office according to law? The statute of Congress of 2d March, 1799, prescribes them. 1st vol. Little & Brown's edition, p. 642. See, also, 2d act of same date, 708, top part of page.

Is there here any authority on the part of government to authorize Crane to become their financial agent, and to authorize him to collect moneys for the government outside of his official duties; and if not, could his sureties be bound by such acts?

Where, then, was the authority to authorize him to draw upon, or receive money from Breedlove, the collector at New Orleans?

Be that as it may, by what authority or law can the United States make the sureties responsible for the money collected by Crane from Willis? Is it part of the official duty of a collector of customs to collect from his predecessor the amount due by him to government? If there be such law, let it be shown. His honor, in the court below, virtually concedes this point, but then he destroys the effect of such concession, by instructing the jury that, although the money might have been received outside of his official duty, yet, as the government adopted the act and charged the amount to him, it was of course conclusive upon him, and that his sureties could not, with any propriety, complain, because it appeared from his accounts that, at the time Crane received the $1,279.92 from Willis, the United States were indebted to him (Crane) in a much larger amount, and that for some time thereafter, and after debiting his accounts with that sum, the balance was still against the United States, and in favor of Crane, and that the defalcation of Crane, for which his sureties were sought to be held liable, accrued long after that period, and that it was therefore immaterial to the sureties, &c.

We respectfully say that there is a mingling up, in this legal caldron, of very...