United States v. Ellis

• Decision Date: 03 July 1887
• Docket Number: Civil 186
• Citation: 2 Ariz. 253,14 P. 300
• Parties: THE UNITED STATES, Plaintiff and Respondent, v. N. ELLIS et al., Defendants and Appellants
• Court: Arizona Supreme Court

14 P. 300

2 Ariz. 253

THE UNITED STATES, Plaintiff and Respondent, v. N. ELLIS et al., Defendants and Appellants

Civil No. 186

Supreme Court of Arizona

July 3, 1887

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai

Affirmed.

Clark Churchill and H. N. Alexander, for Appellant.

The court erred in taking the case from the consideration of the jury and ordering them to bring a verdict for the plaintiff. The United States as a litigant stands on the same plane as an individual, and is subject to the same laws, rules procedure and practice as other litigants.

The United States as a contractor is subject to the same laws rules and constructions governing contracts as any other contracting party. Case of the Siren, 7 Wall. 152-4; United States v. Ringgold, 8 Pet. 150. One rule governing contracts, i. e. that in all cases whatever a promissor will be discharged from all liability when the non-performance of his obligation is caused by the act or fault of the other contracting party. Parsons on Contracts Vol. 2, pages 523, 676; Hudson Canal Co. v. Parma Coal Co., 8 Wall. 288, 289; United States v. Peck, 102 U.S. 64.

When there is evidence which in any way tends to establish the plaintiff's cause of action, or the defendant's case, it is erroneous for the court to withdraw the case from the jury, or direct a verdict; it is not for the court to judge of the sufficiency of the evidence. Proffat on Jury Trials, Sec. 355, page 421; Schuchardt v. Allen, 1 Wall. 359, 371; Drakely v. Gregg, 8 Wall. 268; Hickman v. Jones, 9 Wall. 201; Barney v. Schneider, 9 Wall. 248, 251, 253; Utica Insurance Co. v. Badger, 3 Wend. 103; New York Ins. Co. v. Walden, 12 John. 514, 518.

Owen T. Rouse, U. S. Dist. Atty. (Herndon & Hawkins, of counsel) for Respondent.

The contract among other things provides as follows: "Should any objection be made to the action of the officer designated to inspect and receive the barley, the case will be decided by a board of officers, subject to the approval of the Department Commander."

Where the parties in their contract fix on a certain mode by which the amount to be paid shall be ascertained, the party that seeks an enforcement of the agreement must show that he has done every thing on his part which could be done to carry it into effect. United States v. Robeson, 9 Pet. 319.

The evidence failed to show that Ellis at any time called on any officers or any board to pass upon the quality of the barley after it had been rejected. Therefore he did not avail himself of the terms of his contract or "do every thing on his part which could be done to carry it into effect."

Barnes, J. Wright, C. J., and Porter, J., concur.

OPINION

The facts are stated in the opinion.

BARNES, J.

This is a suit by plaintiff on a bond to secure a contract made by Nathan Ellis, defendant, to deliver barley to the assistant quartermaster of the United States army at Fort McDowell Arizona. Plaintiff recovered a judgment for the full penalty of the bond, to wit, $ 500, and defendant brings the case into this court for review. The abstract shows that plaintiff offered in evidence a certified copy of the bond sued on and of the contract for the delivery of the barley aforesaid, and also certified copies of certain vouchers marked "Exhibits E, F, and G," and copies of other documents from the quartermaster's department from the files of the war department, which seem to have been duly certified by the proper officers of the United States treasury. The abstract does not set out nor state the contents of either the bond sued on or the contract, or either one of the exhibits to which objection is made.

We must presume that the court below ruled correctly in admitting them. Before we can hold that the court below erred, that must clearly appear, and we cannot consider in this court objections to evidence or documents that were offered below unless they are contained in the abstract, so that the court can see what the action of the court and what the evidence was that was objected to.

This disposes of all the objections in the case that we should or can properly consider; but we have, notwithstanding this fact. looked into the record, and find that all these documents and vouchers were properly authenticated by the proper auditor of the treasury having charge of the accounts of the war department, and...