James Roach Philip Roach v. David Hulings

• Citation: 41 U.S. 319,10 L.Ed. 979,16 Pet. 319
• Parties: JAMES ROACH, Administrator of PHILIP ROACH, Plaintiff in error, v. DAVID W. HULINGS, Defendant in error
• Decision Date: 01 January 1842
• Court: U.S. Supreme Court

41 U.S. 319

16 Pet. 319

10 L.Ed. 979

JAMES ROACH, Administrator of PHILIP ROACH, Plaintiff in error, v. DAVID W. HULINGS, Defendant in error.

January Term, 1842

ERROR to the Circuit Court of the district of Columbia, and county of Washington. The defendant in error instituted an action of covenant, in the circuit court of the county of Washington, against Philip Roach, upon certain articles of covenant. Before the trial of the cause, the defendant died, and his administrator became the defendant in the suit, a verdict and judgment were rendered for the plaintiff, and the defendant prosecuted this writ of error.

The case is fully stated in the opinion of the court. It was argued by Brent, Jr., for the plaintiff in error; and by Bradley, for the defendant.

DANIEL, Justice, delivered the opinion of the court.

This case comes up on a writ of error to the circuit court of Washington county, in the district of Columbia. It appears from the record, that Philip Roach, the plaintiff's intestate, having contracted, by agreement in writing, on the 3d day of April 1829, with one Samuel Davidson, for the workmanship to be performed in the construction of a lock described as the outlet lock at a place called Lewistown, did, on the 27th of April, in the same year, enter into a covenant with Hulings, the defendant in error, in which it was agreed, that the defendant should supply all the timber, plank and boards, required in building this lock, at prices stipulated in the said covenant, to be paid by the plaintiff's intestate.

On the 13th of March 1837, an action of covenant was instituted by Hulings, in the circuit court of Washington county, against Philip Roach, to recover the value of the timber, plank, &c., alleged to have been furnished by the former, in performance of the contract. The covenant, is by profert, made a part of the record. An account, exhibit B, is filed, showing the amount and value of the materials for which compensation is claimed; also the deposition of a witness, Samuel Davidson, to prove the justice of this account. Philip Roach having died, after appearance to the suit, process was directed against his representative; and the defendant having subsequently appeared, as administrator of the deceased, filed, first, the pleas of covenants performed, and payment by his intestate; and next, the plea of set-off of an alleged debt of $3000 due to the intestate in his lifetime, and greater in amount than the damages claimed by the plaintiff. On these three pleas, issues were joined; and the jury rendered a general verdict in damages for the plaintiff. The questions of law decided by the court below, and now presented for review here, arise upon two bills of exception sealed by the judges of the circuit court, and made parts of the record.

But before going into an examination of these questions, it is proper to advert to a point which was neither suggested nor decided in the circuit court, but which has been urged, for the first time, by the counsel for the plaintiff in error, before this court. The point thus raised and pressed by counsel is the following: that the jury, in rendering their verdict, failed to respond separately to the distinct issues they were sworn to try; and that this failure by the jury constitutes an error for which the judgment of the circuit court should be arrested. Objections of this character, that are neither taken at the usual stage of the proceedings, nor prominently presented upon the face of the record, but which may be sprung upon a party, after an apparent waiver of them by his adversary, and still more, after a trial upon the merits, can have no claim to the favor of the court; but should be entertained in obedience only to the strictest requirements of the law. Let us see how far, in the present instance, the court is controlled by any such absolute and inflexible authority. The three issues were joined upon affirmative allegations by the defendant: lst, That his intestate had performed his covenant: 2d, That he had paid whatever was due the plaintiff: and 3d, That the defendant possessed, in right of his intestate, a claim against the plaintiff, greater in amount than the plaintiff's demand against him. Upon these affirmative averments, the jury find a verdict for the plaintiff. Admitting, that this verdict is not technically responsive to the several pleas, it virtually answers and negatives them all; for if all or either of the pleas had been true, the verdict was untrue. Should the judgment then be arrested, this would be done, neither from a necessity to guard the merits of the controversy, nor from the principles of sound inductive reasoning; but solely in obedience to an artificial and technical rule, which, however it may be founded in wisdom, and be promotive of good, in general, yet, like all other rules, is capable of producing evil, when made to operate beyond the objects of its creation. It was to prevent the mischiefs ensuing from a misapplied rigor, that statutes of jeofails have been enacted, and their salutary influence is invoked, whenever the intrinsic merits of parties litigant would, without that influence, be sacrificed to mere modes and forms of practice. By the 32d section of the act to establish the judicial courts of the United States, it is provided, 'that no summons, writ, return, process, judgment or other proceedings in civil causes, in any of the courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts, respectively, shall proceed and give judgment according as the right of the cause and matter in law shall appear to them, without regarding any imperfections, defects or wants of form in such writ, declaration or other pleading, return, process, judgment or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially set down and express, together with his demurrer, as the cause thereof.' It is true, that a verdict, eo nomine, is not comprised within this provision of the statute, but judgments are; and the language of the provision, 'writ, declaration, judgment or other proceedings in civil causes,' and further, 'such writ, declaration, pleading, process, judgment or other proceeding whatsoever,' is sufficiently comprehensive to embrace every conceivable step to be taken in a cause, from the emanation of the writ down to the judgment. The court have shown that the proceedings in this cause were according to the right of the case, that they brought into view the real merits of the parties litigant before the jury; they, therefore, consider both the verdict and judgment are within the terms and intent of the statute, and ought to be protected thereby.

The first bill of exceptions states, that the plaintiff having introduced his proofs, the defendant then gave evidence, that in the spring of 1831, the plaintiff stated to the witness, that he had just settled with Philip...