Davis v. Patrick

• Decision Date: 23 May 1887
• Citation: 30 L.Ed. 1090,122 U.S. 138,7 S.Ct. 1102
• Parties: DAVIS v. PATRICK
• Court: U.S. Supreme Court

122 U.S. 138

7 S.Ct. 1102

30 L.Ed. 1090

DAVIS v. PATRICK.

May 23, 1887.

This is an action at law brought in a court of the state of Nebraska, on the twenty-fourth of November, 1880, and removed, on the petition of the defendant, into the circuit court of the United States for the district of Nebraska, by Algernon S. Patrick against Erwin Davis, to recover certain sums of money. There are two causes of action set forth in the petition by which the suit was commenced. Under the first one, the plaintiff claims to recover $2,677.90, with interest from September 3, 1877, and $8,806.92, with interest from February 7, 1877. No question arises here as to the first cause of action. The second cause of action alleged in the petition is, that, on or about the fifteenth of November, 1873, the plaintiff was employed by the defendant to transport silver ore from the Flagstaff mine, in Utah Territory, to the furnaces at Sandy, in that territory, for a certain hire and reward then agreed upon therefor between the parties; that the plaintiff continued in that employment until on or about the twentieth of November, 1875, at which date the account of services was settled and stated from the books of the defendant, and there was then found to be due to the plaintiff $26,539.54; and judgment is prayed for that sum, with interest from November 20, 1875. The answer of the defendant to the second cause of action is a general denial. At the trial before a jury there was a verdict for the plaintiff, on the twentieth of June, 1883, for $50,015.72, and a judgment accordingly, to review which the defendant has brought a writ of error.

The plaintiff moves to strike the bill of exceptions from the record, for the reason that it was not allowed and signed in proper time. On the day the judgment was entered, June 25, 1883, a written stipulation between the parties was filed, providing that the defendant should have 40 days to prepare and present to the court his bill of exceptions, and that the plaintiff should have 20 days thereafter to examine the same and make any suggestions of omission, addition, or correction thereto. On the sixteenth of August, 1883, the writ of error was allowed and filed, a supersedeas bond, duly approved, was filed, and a citation was duly issued, the writ of error being returnable at October term, 1883. On the fourteenth of September, 1883, the following written stipulation, entitled in the cause, was made between the parties: 'The bill of exceptions in this case having been partially settled by his Honor, Judge DUNDY, and he desiring to be absent from the district for a month or more, and being unable to settle the remainder of the bill before leaving, it it is hereby stipulated that the same may be settled and signed at any time before November 1, 1883, and that the reo rd may be filed in the supreme court by the first of December, 1883, with the same effect as if filed at the beginning of the October term.' The term of the court at which the trial was had and the judgment rendered adjourned sine die on the twentieth of October, 1883. The succeeding term of the court began on the twelfth of November, 1883. The bill of exceptions was allowed 1883. The bill of exceptions was eighth of December, 1883, and was filed on the same day. The record was filed in this court on the twenty-sixth of December, 1883.

J. M. Woolworth and Joseph H. Choate, for plaintiff in error.

John F. Dillon and John L. Webster, for defendant in error.

[Argument of Counsel from pages 141-142 intentionally omitted]

BLATCHFORD, J.

The point taken is, that, as the bill of exceptions was signed after the beginning of the term of this court at which the writ of error was made returnable, and during a term of the circuit court succeeding that at which the case was tried, it cannot be considered. But we are of opinion that this objection cannot avail. The stipulation of September 14, 1883, shows, on its face, that the matter of the settlement of the bill of exceptions had been submitted to the judge, and that the delay was agreed to for the convenience of the judge. The purport of the stipulation is, that the bill had, with the knowledge of the plaintiff, been tendered to the judge for signature. This being so, the consent of the parties that the judge might delay the settlement and signature did not have the effect to cause any more delay than would have occurred if the judge had delayed the matter without such consent. The defendant was not to blame for the delay beyond the time named in the stipulation. He appears to have done all he could to procure the settlement of and signature to the bill, and he cannot be prejudiced by the delay of the judge. The bill of exceptions shows, on its face, that the several exceptions taken by the defendant were taken and allowed at the trial and before the verdict. The cases cited by the plaintiff (Walton v. U. S., 9 Wheat. 651; Ex parte Bradstreet, 4 Pet. 102; Sheppard v. Wilson, 6 How. 260, 275; Muller v. Ehlers, 91 U. S. 249; and Coughlan v. District of Columbia, 106 U. S. 7, 1 Sup. Ct. Rep. 37,) do not contain anything in conflict with this ruling. It is supported by U. S. v. Breitling, 20 How. 252. The motion to strike out the bill of exceptions is therefore denied.

The claim of the plaintiff is, that he was employed, not by the defendant personally, but by the plaintiff's brother, M. T. Patrick. The defendant, not disputing the rendering of the services or their value, denies that they were rendered for him, and denies that M. T. Patrick was his agent. He contends that the services were rendered to the Flagstaff Silver Mining Company of Utah, Limited, an English corporation; that M. T. Patrick was the agent of that company; and that, as such, he employed the plaintiff. The question of this agency was the principal question in dispute at the trial.

The Flagstaff mine was owned in 1870 by certain parties in Utah territory, who sold it, through the defendant, to the Flagstaff Silver Mining Company That company continued to own and operate the mine until December, 1883, when J. N. H. Patrick, another brother of the plaintiff, went from New York to London, the defendant being then in London. On the day that J. N. H. Patrick arrived in London the company received a telegram from one Max well, superintendent of its mine in Utah, stating that the mine was attached for debt. It applied to the defendant for a loan of money; whereupon the following written agreement was made between the company and the defendant, on the sixteenth of December, 1873:

'This agreement, made this sixteenth day of December, one thousand eight hundred and seventy-three, between the Flagstaff Silver Mining Company of Utah, Limited, of the one part, and Erwin Davis, now of the city of London, of the other part.

'Whereas, the said Erwin Davis, on the twelfth of June, one thousand eight hundred and seventy-three, advanced the said company the sum of five thousand pounds, at the rate f six per cent. per annum interest;

'And, whereas, the said sum of five thousand pounds is now due and owing to said Erwin Davis, with the interest thereon;

'And, whereas, it is necessary that the said company should have a further advance of money for the purpose of continuing the development of their mine, and for carrying on their business;

'And, whereas, the said Erwin Davis doth hereby agree to advance to said company at such time or times as may be necessary for the purpose aforesaid, not to exceed in amount the sum of ten thousand pounds, in addition to the said sum of five thousand pounds already advanced;

'And, whereas, the said company has, at different times and dates, sold to the said Erwin Davis five thousand one hundred and ninety-five tons of ore, which said ore the said company agreed to deliver to the said Erwin Davis at the ore-house of said company, free of cost 'And, whereas, they have so delivered two hundred tons of said ore, leaving a balance of four thousand nine hundred and ninety-five tons yet undelivered, the cost of said ore having all been paid to said company by said Erwin Davis:

'Now, therefore, it is agreed between owing to said Erwin Davis by the said of the said sum of money now due and woing to said Erwin Davis by the said company, and the further advances to be made by the said Erwin Davis, as herein agreed, and in further consideration of the premises heretofore stated, J. N. H. Patrick, of Salt Lake, is appointed manager of all the property of said company in Utah, and the said J. N. H. Patrick, as said manager, by himself or his agents, is to have the exclusive, sole, and irrevocable (except as hereinafter mentioned) management of all the said company's properties in Utah, and of all the business in Utah of the said company in mining and smelting silver and other ores, and any and all other lawful business, and, as such manager aforesaid of the business and properties aforesaid, he is hereby authorized and empowered to do, execute, and perform any and all acts, deeds, matters, or things whatsoever which ought to be done, executed and performed, or which, in the opinion of the said J. N. H. Patrick, ought to be done, executed, or performed in or about the concerns, engagements, or business of the said company, of every nature and kind whatsoever, as fully and effectually as it could do if the said company were actually present, hereby ratifying and confirming whatsoever the said J. N. H. Patrick may do in and about the company's concerns and business. And it is hereby further agreed, that the said J. N. H. Patrick, or his agents, in furtherance of the purposes aforesaid, is to enter into the possession of all the said company's properties in Utah necessary for conducting the business and management thereof as aforesaid, until such time as, out of the profits of the workings of the properties aforesaid, he, the said J. N. H. Patrick, has repaid to Erwin Davis the said sum of five thousand pounds, with the...