First Unitarian Society of Chicago v. Faulkner Et Al

Decision Date01 October 1875
Citation23 L.Ed. 283,91 U.S. 415
PartiesFIRST UNITARIAN SOCIETY OF CHICAGO v. FAULKNER ET AL
CourtU.S. Supreme Court

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The plaintiffs below, who are defendants here, brought suit against the First Unitarian Society of Chicago to recover for services rendered as architects in preparing plans for a church-edifice.

Judgment was rendered for the plaintiffs below: whereupon the defendant sued out this writ of error.

The assignment of errors is referred to in the opinion of the court.

Submitted on printed briefs by Mr. Daniel L. Shorey for the plaintiff in error, and by Messrs. R. M. Corwine, Quinton Corwine, & J. A. L. Whittier, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Services were rendered by the plaintiffs, as architects, in making plans and designs, and in furnishing drawings, specifications, and estimates for the corporation defendants, preparatory to the erection and completion of a church-edifice for their religious society. Annexed to the declaration is a bill of particulars, setting forth the claim of the plaintiffs, which is as follows:——

For services as architects in making designs, plans, drawings,

specifications, and estimates for a church-building,

with basement, to cost seventy-eight thousand

dollars......................... $2,730.00

For second design and drawings, showing the elevation

of the church-building, with chapel in rear, and tower between the church and chapel, to cost seventy thousand

dollars............................ 700.00

For modification of the above design, with chapel in rear,

and tower at angle of the church, to cost seventy

thousand dollars................... 700.00

For design of church with basement, but without tower,

to cost forty thousand dollars..... 400.00

---------

$4,530.00

Due service was made, and the defendants appeared and pleaded that they never promised in manner and form as alleged in the declaration. Issue being joined, the parties went to trial; and the verdict was for the plaintiffs, in the sum of $3,862.50, part of which was subsequently remitted, and judgment was rendered for the plaintiffs in the sum of $2,900. Exceptions were duly filed by the defendants to the rulings and instructions of the court, and they sued out the present writ of error.

Enough appears in the transcript to show that the plaintiffs were partners, seeking employment as architects, and that the firm was represented in all the negotiations reported in the bill of exceptions by the junior member of the firm. Testimony was given by him at the trial, tending to prove that the plaintiffs, at the request of the defendants, had submitted plans to the latter for a church-edifice, in competition with other architects, for the examination and choice of those composing the defendant corporation. Evidence was also offered by the plaintiffs, consisting of the testimony of the same witness, tending to prove conversations between him and the pastor of the church, and of the action of the plaintiffs in consequence thereof; and they also offered his testimony in evidence tending to show statements and admissions purporting to have been made by the pastor, in relation to the employment of the plaintiffs by the defendants as architects, at a social meeting of the church: to all of which the defendants objected, because no evidence had been given tending to show that the pastor was, in any sense, the agent of the defendants, or that he had any authority to act for them in relation to the employment of the plaintiffs as architects.

Responsive to that objection, the plaintiffs stated to the court that they expected to prove that the pastor acted in that behalf as the agent of the society, and that the society acquiesced in his acts; and upon that understanding the objection was overruled, the court remarking that the testimony would become material if the plaintiffs should subsequently give evidence to prove the agency of the pastor at the time of the interview with the business-partner of the plaintiffs when the plans were submitted or modified, and also at the social meeting of the society, when certain members of the building committee and many members of the society were present.

Exceptions were taken by the defendants to the ruling of the court in admitting these several declarations and admissions; but the bill of exceptions shows to the satisfaction of the court that the evidence was admitted subject to the condition that the plaintiffs should subsequently prove that the party who made the declarations was the agent of the society. No such evidence was afterwards introduced by the plaintiffs; but the bill of exceptions also shows that the attention of the court was not again called to the subject, and that the case was submitted to the jury on the hypothesis that it was not proved that the plaintiffs were the architects of the society.

Declarations of the pastor were not competent evidence, unless it was proved that he was the agent of the society, and that the declarations or admissions were made in respect to matters within the scope of his agency. But it is not absolutely necessary that the proof of agency in every such case should be first introduced. Except in special cases, it is the better practice that the foundation, in such a case, should be laid before the declarations or admissions are admitted; but it is competent for the presiding judge, if in his judgment the ends of justice require it, to relax the rules of practice, and to admit the evidence offered before the proper foundation for the admissibility of the same is laid, if he is well assured by the party offering the evidence that the agency in question will be subsequently proved.

Rules of practice, in conducting jury-trials, are necessarily somewhat flexible; and that remark applies as well to the rules having relation to the order of proof as to those which regulate the number of witnesses which a party may examine, or the time, manner, or extent of a cross-examination. All agree that in ordinary cases the plaintiff must begin, and the general rule is that he must introduce all of his substantive evidence before the defendant is required to open his defence; and the corresponding general rule applicable to the defendant is, that he must introduce all of his substantive evidence before the plaintiff is required to give evidence in rebuttal.

Beyond all doubt, those are good general rules; but it is competent for the presiding judge to relax either of them, in case the ends of justice so require, and to allow evidence to be given by either party in such other order as he, the said judge, in the exercise of a sound discretion, may direct. Where an agreement was offered in evidence, and it was necessary, in order that it should be competent for the consideration of a jury, that proof should be given that the signer was authorized to execute it, and the instrument having been admitted before the authority of the signer was proved, the opposite party excepted to the ruling of the court in admitting it; but Judge Story held that there was nothing in the exception, and remarked that 'it was as competent for the party to prove the authority after, as it was before, giving the agreement in evidence.' Bank v. Guttschlick, 14 Pet. 29.

Equally decisive are the views of this court as expressed in a subsequent case in the same volume. Speaking of the general subject, the court say, that the mode of conducting trials, the order of introducing evidence, and the times when it is to be introduced, are properly matters belonging to the practice of the circuit courts, with which this court ought not to interfere, unless it shall choose to prescribe some fixed general rules upon the subject. Railroad Company v. Stimpson, 14 Pet. 463; Wood v. U. S., 16 id. 361; Kelly v. Crawford, 5 Wall. 790.

State courts have adopted the same rules of practice; and they are of such immediate necessity, that we should come to the same conclusion, even if the question...

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13 cases
  • Steiner v. 20th Century-Fox Film Corporation
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 15, 1956
    ...not the November 17, 1952, act was an overt act causing damages presented prior to other issues at trial. First Unitarian Soc. of Chicago v. Faulkner, 1875, 91 U.S. 415, 23 L.Ed. 283; Kimball Laundry Co. v. United States, 8 Cir., 1948, 166 F.2d 856, 862; Momand v. Paramount Pictures Distrib......
  • Atlantic Coast Line Co v. Ford
    • United States
    • U.S. Supreme Court
    • January 9, 1933
    ...the time pointed out by the excepting party. Castle et al. v. Bullard, 23 How. 172, 189, 190, 16 L.Ed. 424; First Unitarian Soc. v. Faulkner et al., 91 U.S. 415, 423, 23 L.Ed. 283; Tweed's Case, 16 Wall. 504, 515, 516, 21 L.Ed. 389; Locke v. United States, 2 Cliff. 574, 15 Fed.Cas. 740, 742......
  • People of Territory of Utah v. Hart
    • United States
    • Utah Supreme Court
    • June 19, 1894
    ... ... Berlin (Utah), 10 Utah 39, 36 P. 199; ... Society v. Faulkner, 91 U.S. 415, 23 L.Ed ... Section ... ...
  • People of Territory of Utah v. Berlin
    • United States
    • Utah Supreme Court
    • March 23, 1894
    ... ... charge, for the first time, in the appellate court. Nor is it ... fair to the ... 190. In Society v. Faulkner, 91 U.S. 415, ... 23 L.Ed. 283, the court ... ...
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