Sturm v. Boker

Citation14 S.Ct. 99,37 L.Ed. 1093,150 U.S. 312
Decision Date20 November 1893
Docket NumberNo. 14,14
PartiesSTURM v. BOKER et al
CourtUnited States Supreme Court

This suit, as originally instituted, was an action at law by the appellant, in the superior court of Marion county, Ind., against the defendants, to recover the sum of $238,000, with interest thereon, for which sum, the plaintiff alleged, they were indebted to him. The defendants, being citizens of New York, removed the cause to the circuit court of the United States; and, as the claim involved various matters of account, running through a period of several years, the court, on motion of the defendants, transferred the cause to the equity docket, and required the plaintiff to reform his pleadings. In compliance with this order, the plaintiff filed his bill of complaint, setting forth various transactions involving matters of account between himself and the defendants, commencing in September, 1867, and continuing down to September, 1876. The answer of the defendants admitted many of the facts charged, and either denied others, or set up new matter in avoidance thereof.

The several items of account presented by the pleadings need not be specially mentioned, or separately considered, not is it deemed necessary, in the view we entertain of the case, to review the immense volume of testimony taken in the course of the litigation,—covering about 4,000 printed pages,—involving irreconcilable conflicts, and including much that is wholly irrelevant. The material facts are clearly established by the written agreement of the parties, and by the admissions made in the pleadings; and the controlling question of law arising thereon, and upon which the correctness of the decree dismissing the bill must be determined, is whether the court below placed the proper construction upon the original contract enterted into between the parties, under which the defendants consigned certain arms and munitions of war to the complainant, to be by him shipped to, and sold in, Mexico. That contract, after some previous verbal negotiations, was embraced in the following correspondence:

'Office of Hermann Boker Co., No. 50 Cliff Street.

'New York, September 18th, 1867.

'General H. Sturm, present.

'Dear Sir: Inclosed please find our bill of sundry arms, etc., amounting to $39,887.60, for which amount please give us credit on consignment account.

'As mutually agreed, we consign these arms to your care, to be shipped to Mexico, and to be sold there by you to the best advantage. Should these arms not be disposed of at the whole amount charged, we have to bear the loss. Should there be any profit realized over the above amount of bill, such profit shall be equally divided between yourself and us.

'Also, it is understood that all these goods are shipped by you free of any expenses to us, and that, in case all or any of them should not be sold, they shall be returned to us free of all charges.

'As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us. Please acknowledge the receipt of this, expressing your acquiescence in above, and oblige,

'Yours, truly,

Hermann Boker & Co.'

Accompanying this letter was an invoice, in form as follows:

'No deduction allowed for errors or damages unless claim is made within five days after the goods are received.

'Herman Funke. Folio _____.

'R. A. Boker.

'50 Cliff Street, New York,

'F. Schumacher. Sept. 18th, 1867.

'Mr. H. Sturm in joint acc't with Hermann Boker & Co.:

'Payable in gold.

'Terms, net cash.

'Forwarded for your account and risk, per

'Forwarded for your account and risk, per _____:

1 12-pounder battery, brass, complete $ 9,000

1 3-rifled battery, iron, complete 8,000

------- $17,000

73 cases of 20 ea. )1,470 Springfield R.

1 " 10 " ) muskets, 8.00 $11,760

74 cases, 3.50 259

--------- 12,019

1,000 r'ds fixed ammunition, 13 p., 2.00 $ 2,000

504 r'ds fixed ammunition, 24 pd., 2.00 1,008

209 boxes:

100,000 Enfield cartridges, 12.00 1,200

100 boxes:

200,00 Maynards, 20.50 4,100

---------- 8,308

200 boxes:

670 perc. shell, 3 Hotchkiss, 1.25 $ 837 50

680 time fuse, 3 Hotchkiss, 1.25 850 00

270 case shot, 3 " 1.55 428 50

180 canister, 3 " 1.00 180 00

153 boxes, painted, 1.50 229 50

27 " not painted, 1.30 35 10

---------- 2,560 60

--------------

$39,887 60"

To which complainant replied:

'New York, Sept. 26th, 1867.

'Messars. Hermann Boker & Co.

'Gents: I have the honor to acknowledge the receipt of your letter of the 18th inst., in which you inclose bill of sundry arms, amounting to $39,887.60, consigned to me upon certain conditions contained in said letter.

'In reply, I have to say that I accept the terms of said conditions of consignment, and, as soon as I obtain the policies of insurance upon said goods, will transfer them to you.

'Very respectfully, your ob't servant,

'H. Sturm.'

There was another consignment, the terms of which are contained in the letters of October 24, 1867, as follows:

'New York, October 24th, 1867.

'General H. Sturm, present.

'Dear Sir: Inclosed we beg to hand you our bill for muskets, amounting to $10,175, for which please give us credit on consignment account.

'As mutually agreed, we consign these arms to your care, to be shipped to Mexico, and to be sold there by you to the best advantage.

'Should these arms not be disposed of at the amount charged we have to stand the loss. Should there be any profit realized over the above amount, such profit shall be equally divided between yourself and us.

'It is also understood that these goods shall be shipped by you free of any expenses to us, and that, in case they should not find a ready sale, they shall be returned to us free of all charges.

'Please attend to the insurance of this lot, and have the amount transferred to us in one policy; also, please acknowledge the receipt of this, stating your acquiescence in above. We likewise beg to hand you inclosed the San Francisco draft of Placido Vaga, $63,699.60 gold, with protest and power of attorney to collect, with legal interest, same attached. We will allow you a commission for collecting this draft and interest for us, of ten per cent. off the amount.

'Be kind enough to acknowledge the receipt of this draft.

'Wishing you a pleasant trip, and prosperous affairs, we beg to remain,

'Yours, truly,

[Signed] Hermann Boker & Co.'

'New York, October 24th, 1867.

'General H. Sturm.

'Dear Sir: We beg to refer to our annexed letter, contents of which we expressed according to our mutual agreement. We now beg to say, in order to avoid any misunder- standing hereafter, that with regard to the two lots of new Springfield rifles shipped to your care, viz.

'1,470 and 74 cases and

'1,000 '50'

we should direct as follows:

'Should these mentioned arms not bring the prices as charged by us, viz. $8.00 apiece for the first and $10.00 apiece for the second lot, then we would respectfully request you to have them returned to us free of expenses, as agreed.

'Please express your acquiescence in above and oblige,

'Yours, truly,

[Signed] ' Hermann Boker & Co.'

The invoice which accompanied this last consignment is as follows:

'Office of Herman Boker & Co.,

'No. 50 Cliff Street, New York,

'October 24, 1867.

'H. Sturm, Esq., N. Y.:

'Bought of Herman Boker & Co., in joint account,

'50 cases containing:

1,000 new Springfield muskets @ $10. $10,000

50 cases @ $3.50...................... 175

----------

$10,175"

While it is clearly established that both of these consignments were made upon the same terms and conditions, the invoices which accompanied them differed in some respects. The bill accompanying the October consignment was entirely in writing, while the invoice accompanying the September consignment was written under a printed billhead of the defendants. The printed heading was not changed, except by erasing the words, 'bought of,' and inserting in their place the words, 'Mr. H. Sturm in joint acc't with.' The words, 'Payable in gold,' appear to have been stamped on the bill, but whether this was done at the time of its delivery to the complainant, or subsequently, when the defendants regained possession of the bill, is a question of dispute between the parties; and under the testimony it is a matter of grave doubt whether they formed a part of the invoice bill, as originally rendered, but it is not deemed necessary to determine this controverted question of fact.

The October consignment, which was insured by the defendants themselves, and was shipped by the steamer Wilmington, reached Mexico safely, and causes no controversy between the parties except as to a portion of the proceeds arising from the sale thereof, which was received by the defendants.

The September consignment, together with similar goods of the value of $169,516, belonging to the complainant, were shipped on the schooner Keese and brig Blonde. The Blonde carried of the consigned goods, $10,560.60, and of the complainant's goods, $17,250, while the Keese carried of the consigned goods, $29,327, and of complainant's goods, $152,266.

The goods shipped on both vessels were insured in 14 separate policies. These policies were made out in the name of Sturm, 'for account of whom it might concern.' The whole amount of insurance on the goods carried by the Blonde was $30,000, while the total insurance on the goods, individual and consigned, carried by the Keese, was $163,000. This insurance was effected through an insurance broker, who was informed that the defendants had an interest of about $40,000 in the goods to be covered by the policies, and who was directed to consult Mr. Funke, the member of defendants' firm with whom the complainant had chiefly conducted the transaction in controversy, as to how those policies should be made. This he did, and with the consent, and by the direction, of Mr. Funke, he took the whole lot of insurance together, in...

To continue reading

Request your trial
292 cases
  • First National Bank v. Ford
    • United States
    • Wyoming Supreme Court
    • July 17, 1923
    ...of proving its alteration was on defendant. (Bank v. Liewer, 187 F. 16; U. S. v. Linn, 1 How. 104; Smith v. U.S. 69 U.S. 219; Sturm v. Boker, 150 U.S. 312; Murray v. Lardner, 17 L. ed. 857; Leske Baumgart, 99 Neb. 479.) The fact that alteration may be shown under general denial does not alt......
  • The Belt Seed Co. v. Mitchelhill Seed Co.
    • United States
    • Missouri Court of Appeals
    • June 16, 1941
    ...899; R.J. Menz Lbr. Co. v. E.J. McNeeley & Co., 58 Wash. 223, 108 Pac. 621, 28 L.R.A. (N.S.) 1007, 1011; Sturm v. Boker, 150 U.S. 312, 14 Sup. Ct. Rep. 99, 37 L. Ed. 1093, 1099; B.F. Sturtevant Co. v. Fire Proofing Film Co., 216 N.Y. 199, 110 N.E. 440, L.R.A. 1916D, 1069, 1071; Olson v. Wab......
  • Charles M. Stieff, Inc., v. City of San Antonio
    • United States
    • Texas Supreme Court
    • January 5, 1938
    ...there can be no sale to the receiver. Ludvigh v. American Woolen Co., 231 U.S. 522, 34 S.Ct. 161, 58 L.Ed. 345; Sturm v. Boker, 150 U.S. 312, 14 S.Ct. 99, 37 L.Ed. 1093; Franklin v. Stoughton Wagon Co., 8 Cir., 168 F. 857; Butler Bros. Shoe Co. v. U. S. Rubber Co., 8 Cir., 156 F. 1, certior......
  • Gonzales v. Sun Life Ins. Co. (In re Furr's Supermarkets, Inc.)
    • United States
    • U.S. Bankruptcy Court — District of New Mexico
    • December 20, 2012
    ...my arm above my head.’ ”) (Emphasis in original.) (Holding that judicial estoppel did not apply). See also Sturm v. Boker, 150 U.S. 312, 336, 14 S.Ct. 99, 37 L.Ed. 1093 (1893): What the complainant said in his testimony was a statement of opinion upon a question of law, where the facts were......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT