Butler v. Goreley

• Citation: 146 U.S. 303,36 L.Ed. 981,13 S.Ct. 84
• Decision Date: 05 December 1892
• Docket Number: No. 20,20
• Parties: BUTLER v. GORELEY
• Court: United States Supreme Court

146 U.S. 303

13 S.Ct. 84

36 L.Ed. 981

BUTLER

v GORELEY.

No. 20.

December 5, 1892.

Benjamin F. Butler, for plaintiff in error.

Chas. Levi Woodbury, Geo. E. Jacobs, and W. H. H. Andrews, for defendant in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.

This is an action of contract, brought in the superior court for Suffolk county, Mass., by writ, dated October 20, 1886, returnable on the first Monday in November, 1886, by Charles P. Goreley, assignee in insolvency of the estate of Isaac H. Taylor, an insolvent debtor, against Benjamin F. Butler, to recover the sum of $5,874.15, and interest thereon from April 6, 1885. The particulars of the plaintiff's demand, as set forth in the writ, are to the pruport and effect contained in the agreed facts hereinafter set forth. The defendant appeared in the suit, and filed an answer denying all the allegations in the writ and declaration. A jury trial was waived by a written agreement, and the parties filed the following statement of agreed facts:

'Isaac H. Taylor, of Boston, in said county, mentioned in the declaration, filed his voluntary petition in insolvency, in said county, June 20, 1883, on which he was duly adjudged an insolvent debtor, and his assignee was appointed on the 20th day of July in the same year, and his deed of assignment was thereupon issued to him on the same day, a copy of which is annexed and made a part hereof, and is marked 'A,' and the plaintiff accepted the same, proceeded to the discharge of his duties, and published due notice of his appointment in the Boston Post in September, 1883, a newspaper published at Boston, Mass.

'The second and third meetings of the creditors were duly held and due notice thereof published in newspapers at said Boston, at which claims were proved, but no discharge was granted to the insolvent. The schedule of assets of said Taylor did not disclose the claim hereinafter mentioned. Prior to said insolvency said Isaac H. Taylor, on or about the 14th day of June, 1863, in or near latitude 23 degrees south, longitude 43 degrees west, was a passenger on board the bark Good Hope, which was captured and burned by a tender of the Confederate cruiser Alabama named the Georgia; and said Isaac H. Taylor, being a passenger lawfully on board said bark Good Hope, an American vessel, by reason of said capture and burning of said bark, became the loser of his personal effects, expenses, and other losses, amounting in all, as he claimed, to five thousand three hundred and fifty dollars, with interest thereon.

'Whereupon, after congress had passed an act known as 'An act in regard to Alabama claims,' by which citizens of the United States proving their losses should be indemnified out of the treasury of the United States, from the proceeds of the money paid to the United States by Great Britian under the Geneva award appointed under the treaty of Washington, which was then in the treasury of the United States, said Taylor filed his claim on the 13th day of January, 1883; which claim was duly prosecuted and heard, and was adjudicated in favor of Isaac H. Taylor by the court of commissioners of Alabama claims, in the sum of three thousand seven hundred and eighty-five dollars and twenty-five cents, actual loss and damage sustained by him, with interest thereon at the rate of four per cent. per annum from June 14, 1863, to March 31, 1877, which interest amounted to the sum of two thousand and eighty-eight dollars and ninety cents, making a total sum adjudicated to him of five thousand eight hundred and seventy-four dollars and fifteen cents. No other assets of value came to the hands of the plaintiff as assignee aforesaid.

'That on the 20th of February, 1885, a draft issued from the treasury, a copy whereof, with the indorsements thereon, is hereto annexed and made a part hereof, and is marked 'B,' payable to the order of Isaac H. Taylor, for said sum, and was thereupon duly mailed to the care of Benjamin F. Butler, the defendant, E. J. Hadley and E. L. Barney, attorneys of record, at 16 Pemberton square, Boston, which was received by them in due course of mail.

'On February 24, 1885, Isaac H. Taylor died at said Boston intestate. On March 31, 1885, Sallie B. Taylor, of Duxbury, Mass., the widow of said Isaac H. Taylor, upon her petition filed March 7, 1885, and on giving bond with sureties, was duly appointed by the probate court of the District of Columbia administratrix of the personal estate of said Isaac H. Taylor. There has been no appraisal, nor has she as administratrix filed an inventory or done any act, so far as the records show, since the letters of administration issued to her.

'That on April 4, 1885, said Sallie B. Taylor executed a power of attorney, a copy of which is annexed and made a part hereof, and is marked 'C,' to said Butler, the defendant, to indorse said draft and receive payment thereon from the treasury of the United States, and thereupon said Butler received said sum of five thousand eight hundred and seventy-four dollars and fifteen cents; that said Butler thereafterwards paid, before the commencement of this suit, the attorneys' fees upon said draft, amounting to $1,087, and on the 26th day of July, 1886, he paid the sum of one hundred and twenty-six dollars for undertaker's services, but without the knowledge of the plaintiff.

'It is further agreed that the acts passed June 23, 1874, and June 5, 1882, made provision for the payment of losses suffered through certain cruisers called the 'inclupated cruisers,' among which were the Alabama and her tenders, of which said Georgia was one.

'That when said Sallie B. Taylor, the widow, applied to said Butler to have said money paid to her, he advised her that that could not be done unless she took out administration in the District of Columbia, and she accompanied him to Washington, and there applied to the court for such letters of administration, and said Butler, the defendant, signed her bond as such administratrix, she having no property in the District of Columbia, and made an agreement with her to retain the draft and the moneys received thereon as security for his becoming surety on said bond. Owing to the claim made in this suit, said administration has not yet been settled and concluded in said District, but awaits the determination thereof.

'That demand was made upon the defendant for said draft by the plaintiff in person, at Boston, before the filing of said petition for administration by said Sallie B. Taylor, and defendant was at the same time notified by the plaintiff that he was assignee, as aforesaid, of the estate of said Taylor, and that as such assignee he was entitled to the amount of said draft and the proceeds thereon. The treaty of Washington, the award of the arbitrators thereunder, and the acts of congress of June 23, 1874, and June 5, 1882, the laws of Maryland as continued in force by the laws of the District of Columbia, and the laws of the District of Columbia, may be referred to and are made a part hereof.

'If the court find that the plaintiff is entitled to recover, judgment shall be entered for the plaintiff for the sum of forty-six hundred and sixty-one and 15-100 dollars, and interest thereon from June 1, 1887; otherwise plaintiff to become nonsuit.'

The deed of assignment annexed to the agreed facts, and marked 'A,' set forth that Charles P. Goreley had been duly appointed assignee in the case of Isaac H. Taylor, insolvent debtor, by the court of insolvency of Suffolk county, and that the judge of that court, by virtue of the authority vested in him by the laws of Massachusetts, thereby conveyed and assigned to said assignee all the estate, real and personal, of Taylor, including all the property of which he was possessed, or which he was interested in or entitled to, on June 20, 1883, excepting property exempt from attachment, in trust for the uses and purposes, with the powers, and subject to the conditions and limitations, set forth in said laws. The deed was executed by the judge of the court of insolvency on July 20, 1883.

The draft referred to in the agreed facts, and marked 'B,' was dated February 20, 1885, and was drawn by the treasurer of the United States on the assistant treasurer at Boston, Mass., payable to the order of Isaac H. Taylor, for $5,874.15, and was indorsed on the back as follows: 'Sallie B. Taylor, adm'x of Isaac H. Taylor, by her attorney in fact, Benj. F. Butler. Payable to Benj. F. Butler, attorney. Authority on file. J. R. Garrison, Dep'ty First Comptroller.' It was paid by the treasurer of the United States on April 6, 1885, and was accompanied by a power of attorney, marked 'C,' dated April 4, 1885, executed by Sallie B. Taylor, appointing Benjamin F. Butler her attorney to indorse her name on said draft, and to receive and receipt for the money. This power of attorney was duly acknowledged before a notary public of the county of Suffolk, Massachusetts, on April 4, 1885.

On November 15, 1887, the case was heard on the agreed facts, by the superior court, which on that day entered a judgment for the plaintiff in the sum of $4,789.33. The defendant appealed to the supreme judicial court of Massachusetts, which, on May 4, 1888, transmitted a rescript to the superior court, directing its clerk to enter a judgment for the plaintiff for $4,661.15, and interest thereon from June 1, 1887. The superior court, on June 4, 1888, entered a judgment in favor of the plaintiff against the defendant for $4,943.14 damages, and $34.41 costs. The defendant has brought the case to this court by a writ of error.

The opinion of the supreme judicial court of Massachusetts is reported in 147 Mass. 8, 16 N. E. Rep. 734. That court held that, under the insolvent law of the state, (Pub. St. c. 157, § 46,) which provided that 'the assignment shall vest in the assignee all the property of the debtor, real and personal,' the claim in question was 'property;' that under the act of congre...