Butler v. National Home For Disabled Volunteer Soldiers

• Decision Date: 14 March 1892
• Citation: 12 S.Ct. 581,36 L.Ed. 346,144 U.S. 64
• Parties: BUTLER v. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS
• Court: U.S. Supreme Court

144 U.S. 64

12 S.Ct. 581

36 L.Ed. 346

BUTLER v. NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS.

March 14, 1892.

Eugene M. Johnson and Benjamin F. Butler, for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

Mr. Justice HARLAN delivered the opinion of the court.

The National Home for Disabled Volunteer Soldiers, a corporation existing under the laws of the United States, brought this action against the plaintiff in error in the supreme judicial court of Massachusetts to recover the sum of $15,000, with interest from November 20, 1879.

The defendant denied each allegation in the declaration contained, and also averred that he had paid the plaintiff in full all sums he ever owed it, due accord and satisfaction having been made. He filed, in addition, a declaration in set-off, stating that he was directed by the board of managers and directors of the Home to act as its treasurer, which it was not his official duty to do; that he continued to act in that capacity until the expiration of his term of office as a manager; that his service as such treasurer was very onerous and responsible, he having collected, invested, reinvested, taken charge of, and paid out very large sums of money, in the aggregate more than ten millions of dollras, and kept the records and accounts and examined the vouchers thereof; and that he was relieved from that duty and service at his own request, after ceasing to be a member of the board. He claimed just and proper compensation for his services in that behalf.

Upon the petition of the defendant the case was removed for trial into the circuit court of the United States upon the ground that the plaintiff was a corporation created by an act of congress, and the suit was therefore one arising under the laws of the United States. 18 St. 471, c. 137; Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113.

After the removal of the cause, the plaintiff filed an answer to the declaration in set-off, denying that the defendant had any legal claim for services as acting treasurer or otherwise, and averring that there never was any agreement or understanding between the board of managers and the defendant that the latter should receive compensation for services rendered or to be rendered, or duties performed or to be performed, by him in connection with the Home; that no salary or other compensation therefor was ever determined or fixed by the board; and that the defendant never made any claim or demand upon the plaintiff for compensation for such services prior to the filing of his declaration in set-off.

The evidence on behalf of the plaintiff tended to show the following facts: The defendant, as acting treasurer of the Home, paid, May 7, 1879, to William S. Tilton, manager of the Eastern Branch Home, the sum of $15,000, to be used for the purchase of leather for the manufacture of boots and shoes at the eastern branch, and charged the same as so paid out in his accounts. In payment of that advance, Tilton, October 13, 1879, sent to Butler a sight draft for $9,838, drawn by the latter on his financial agent and bookkeeper, George J. Carney, payable to the order of Pitkin & Thomas, and sent by the defendant, as acting treasurer, to that firm, in payment for clothing furnished by it to the Home. Pitkin & Thomas indorsed the draft, and delivered it to Tilton in payment of boots and shoes purchased of him by them. Tilton sent it, together with his receipt for $5,162, to Carney. The receipt was in these words: 'Togus, Me., Oct. 13th, 1879. Receipt for money this day received from Gen. B. F. Butler, acting treasurer of the National Home for Disabled Volunteer Soldiers, $5,162. WILLIAMS S. TILTON, Acting Treasurer.'

The letter to Carney, containing the draft and receipt, was as follows:

'Togus, Me., October 13th, 1879.

'Col. George J. Carney, Financial Agent, Lowell, Mass.

'My Dear Col.: The general has requested me to arrange for the settlement of $15,000, which he loaned me for the purchase of leather.

I inclose Gen. Butler's draft on you

at sight........................... $9,838

And my treasurer's receipt........... 5,162

-----------

$15,000

'The Home owed me a balance of $5,985.81 on the 30th September, '79; so the above balance (for which I send you regular treasurer's receipt in duplicate) will go far to wards making us square on the ordinary Home expenditures.

'WILLIAM S. TILTON, Acting Treas'r.' Tilton never took up on his regular account with the Home the receipt of the $15,000 on May 7, 1879, nor entered in that account the repayment thereof, but entered both transactions in his 'shoe-shop books.'

It also appeared in the evidence introduced by the plaintiff that the $5,162 was never in fact paid to Tilton, but that subsequently defendant gave Tilton an invoice for that sum, the same as if it had been paid, and that Tilton took the same up on his regular account with the Home and accounted for it; that the defendant's accounts as acting treasurer were rendered quarterly on the last days of December, March, June, and September, and in those for the quarter ending December 31, 1879, no credit was given the Home for the draft and receipt sent by Tilton, but it was therein charged, under date of November 20, 1879, with the payment to Pitkin & Thomas of the sum of $9,838, and the payment to Tilton of the $5,162; and that, in the defendant's account-book, kept by Carney, in connection with the entry of payment by the defendant, November 20, 1879, of the sums of $9,838 and $5,162 to Pitkin & Thomas and Tilton, respectively, was the following memorandum in Carney's writing: 'No money passes from G. J. C. to settle these. They offset an advance to Tilton.'

Some letters that passed between the defendant and his successor in office, Gen. Franklin, were put in evidence, but they need not be set out.

The court having overruled a motion, made at the close of the plaintiff's evidence, that a verdict be returned for the defendant,—to which action of the court an exception was taken, the latter opened his defense with a speech to the jury, occupying nearly 10 pages of the printed record.

The first witness introduced for the defense was Carney, who kept the accounts of the Home relating to the moneys received by the defendant as acting treasurer, from some time in 1869 down to 1880. All the entries were in his handwriting. With the accounts and account-books kept by him the defendant never at any time interfered. In the progress of his examination numerous rulings as to evidence were made, to which the defendant excepted. Among other things, Judge CARPENTER, before whom the case was tried, said: 'I take it for granted all along that nothing is offered to be proved except what has been opened to the jury.' To this the defendant replied, 'Yes, sir.' The judge then said: 'That being so, I shall instruct them that nothing that has been offered is relevant, and that nothing that can be offered that does not go outside of the statement which was made in the opening of the case is relevant.'

Another witness was sworn on behalf of the defendant, when, according to the bill of exceptions, the following occurred:

Defendant. 'Shall I go on further with Mr. Carney on the question of the bookkeeping? Did I understand your honor to say that, it appearing on our books we have taken it up and charged it, we are not at liberty to show that it was accounted for to the asylum?

Court. 'No; I will repeat it. I should have been understood to say that if the testimony offered by you, and which was to be adduced in answer to the question asked by you, whatever it was, was to establish some allegation or offer of proof made by you in your opening to the jury, and went no further than that, and did not undertake to establish any allegation not offered to be proved by you in your opening to the jury, then, in that case, it is irrelevant to the issue, and inadmissible.

Defendant. 'I expressly opened to the jury that it had all been accounted for.

Court. 'I did not so understand you.

Defendant. 'I did, sir; and said that very account; and will your honor remember what I said exactly, that it had gone into the account; that the account had been audited and approved, and not a cent remained in my hands, as there would have been, or in Mr. Carney's hands, if there had been this $15,000. I said that.

Court. 'I do not think such facts as that amount to a defense.

Defendant. 'What,—that it has been ultimately accounted for?

Court. 'The statement that it is ultimately accounted for is a proposition of mixed law and fact.

Defendant. 'I want to put in the facts upon that question.

Court. 'You are to prove to the jury, and, of course, state in your opening, the facts which you are to prove. They are not legal conclusions. Of course, however proper it may be to advert to them as throwing light upon the nature and manner of the defense, they are not included in the propositions which you are going to sustain by proof. Legal conclusions cannot be sustained by proof or evidence offered in any case.

Defendant. 'My proposition is that I did state the fact of accounting and the fact of paying over. I remember this phrase, that I paid the balance that was found due from me upon the accounts to my successor. If that is not opening,—that I paid it and accounted for it,—I don't know what it is.

Court. 'I may, perhaps, be misunderstood. I mean to say that upon all the statements of fact made in the opening, and thereby offered to be proved to the jury, assuming them to be true, there is no defense whatsoever to this action, in my judgment; and I shall pass upon the questions of testimony in that view, and shall so instruct the jury.

Defendant. 'And will not permit me to come in and show that they were all accounted for?

Court. 'If you wish to offer any testimony as to matters of fact beyond and outside of such matters of fact as were opened by you to the jury, I will hear a statement of...