Swift & Co. v. Jones

• Decision Date: 03 May 1906
• Docket Number: 634
• Citation: 145 F. 489
• Parties: SWIFT & CO., Limited v. JONES.
• Court: U.S. Court of Appeals — Fourth Circuit

145 F. 489

SWIFT & CO., Limited v. JONES.

No. 634

United States Court of Appeals, Fourth Circuit.

May 3, 1906

T. W Bickett (Arthur F. Evans, on the brief), for plaintiff in error.

F. S Spruill and William H. Ruffin, for defendant in error.

Before PRITCHARD, Circuit Judge, and WADDILL and KELLER, District judges.

WADDILL District Judge.

The plaintiffs in error filed their complaint in the court below against the defendant in error to recover from him an alleged indebtedness of $2,487.75, for which they claim defendant was liable as guarantor upon a contract entered into between the plaintiffs and E. C. Jones, a son of the defendant; the undertaking being that said E. C. Jones would faithfully perform all the terms and conditions of a certain contract of agency theretofore entered into between him and the plaintiffs, and pursuant to which the latter appointed said E. C. Jones as their agent for the sale of their products in the town of Louisburg, N.C., the amount sued for being an alleged balance due by said E. C. Jones to the plaintiffs on account of the agency. The agreement or contract of agency between the parties is not under seal, nor the defendant's guaranty thereof, which is as follows:

'In consideration that Swift & Co., Limited, execute the foregoing agreement with E. C. Jones, I hereby guaranty the performance thereof by E. C. Jones of all the terms and conditions therein by him agreed to be kept and performed. It is understood that this is a continuing guaranty. (Signed) J F. Jones.'

The defendant answered this complaint, setting up various defenses, but the one chiefly relied on, and on which the court below based its decision, was the following clause of the contract of agency:

'The defendant answered this complaint, setting up various defenses, but the one chiefly relied on, and on which the court below based its decision, was the following clause of the contract of agency:

'The party of the second part (E.C. Jones) was to give a fidelity bond in such sum, and with such company as surety, as the party of the first part (Swift & Co.) to pay the premium.'

The contention being, and which theory the court below adopted, that this clause in the contract constituted a condition precedent to the defendant's guaranty; and it appearing from the facts that E. C. Jones, the party of the second part to the contract, had signed a blank application for such guaranty bond, that this was all which was incumbent upon him to do, as the plaintiffs in error, parties of the first part to the contract, were to designate the surety company, and pay the premium, which it does not appear was ever done, and said bond was never executed. The proceeding, though instituted in the United States Circuit Court, was brought under the North Carolina Code court, setting up the plaintiffs' cause of action. It nevertheless was purely a common-law case, for which the ordinary action of assumpsit would lie and was the proper remedy. Without considering the assignments of error, a preliminary question is presented upon the face of the record, which the court feels called to pass upon, and which, in its judgment, makes it necessary, without in any manner passing upon the merits of the case, to remand the same to the lower court for further action therein. Upon the joinder of issue between the parties, as contemplated by the North Carolina Code Procedure, an order was entered by the lower court, also in conformity therewith, referring the case to a special master, who was 'authorized pleadings, and report his findings of fact to the court,' to the entry of which order both parties by counsel assented; and it was upon the findings of fact by the special master, who heard the evidence, and duly made his report thereon, that the lower court rendered its judgment in favor of the defendant. It is as to the correctness of this method of ascertainment of facts in a common-law case, as distinguished from a jury trial or trial by the court without a jury, that we base our action herein.

Under section 914 Rev. St., being section 5 of the act of June 1, 1872, c. 255, 17 Stat. 197 (U.S. Comp. St. 1901, p. 684), it is provided that:

'The practice, pleadings and forms, and modes of procedure in civil causes, other than in equity and admiralty causes, of the circuit and district courts, shall conform, as near as may be, to the practice, pleadings and forms, and modes of procedure existing at the time in like cases in the courts of record of the state in which such circuit and district courts are held, any rule of court to the contrary notwithstanding.'

Under this section, it may be conceded that the method of instituting the suit under the state practice by complaint, as distinguished from a formal declaration, could be adopted (Nudd v. Burrows, 91 U.S. 426, 23 L.Ed. 286; Railroad Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898); care being observed, however, to see that there was no confounding or combining legal and equitable causes of action. (New Orleans v. Construction Co., 129 U.S. 45, 9 Sup.Ct. 223, 32 L.Ed. 607). But while this is true as to the form of the action, and as to many of the questions raised in the progress of the proceedings thereof, it by no means follows that the federal court will in all respects be governed in the conduct of the case by the state laws'; and particularly is this true in regard to questions pertaining to the manner and method of the trial of the case in that court, which must necessarily be largely governed by the federal statutes and the modes of practice prescribed for the government of such courts. The Supreme Court of the United States has, therefore, in construing the act in question, invariably held that the practice acts of the states should not be followed when in the estimation of the judges of the federal courts such legislation would unwisely incumber the administration of the law, or tend to defeat the ends of justice in the federal tribunals; nor should such acts be followed when the same were found to be inconsistent with the terms, or would tend to defeat the purpose, or impair the effect, or any legislation of Congress. Indianapolis R.R. Co. v. Horst, 93 U.S. 391, 23 L.Ed. 898; Southern Pacific Co. v. Denton, 146 U.S. 202, 209, 13 Sup.Ct. 44, 36 L.Ed. 377; Luxton v. North River Bridge Co., 147 U.S. 336, 338, 13 S.Ct. 356, 37 L.Ed. 194; Chappell v. United States, 160 U.S. 499, 513, 16 Sup.Ct. 397, 40 L.Ed. 510. The Congress of the United States has in terms prescribed how trials in actions at law in the federal courts, certainly so far as the ascertainment and determination of the facts are concerned, shall be had; namely, by jury trial, or by the court without the intervention of a jury, pursuant to and in the manner prescribed by the act waiving a jury.

'Sec. 648, Rev. St. (U.S. Comp. St. 1901, p. 525). The trial of issues of fact in the circuit courts, shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, and by the next section.

'Sec. 649, Rev. St. (U.S. Comp. St. 1901, p. 525). Issues of fact in civil cases in any circuit court, may be tried and determined by the court, without the intervention of a jury, whenever the parties or their attorneys of record, file with the clerk a stipulation writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.'

'Sec. 700, Rev. St. (U.S. Comp. St. 1901, p. 570). When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.'

These three sections constitute the whole federal law upon the subject, so far as this case is concerned, where the facts were ascertained without the intervention of a jury, and by the last-named section, the method of the correction of errors upon writ of error is expressly confined to the rulings of the court in the progress of the trial in the cause, if excepted to at the time, and duly preserved by bill of exception; and upon such writ of error the facts can only be inquired into where the finding...