*1 ery. second, suggest As to the I would really
that like that de- issues Congress
termine whether will remain a day-to-
viable institution. For if in the government
day business of the Execu- permitted
tive his ideas substitute expedience policy determinations
unambiguously expressed by Congress,
larger routinely issues will be decided regard without to our basic constitution-
al scheme.26 require obey Secretary I would Congress. respectful-
the command of I
ly dissent.
Seitz, part Judge, concurred in opinion. and dissented in and filed Guy DUBERN, Appellant, Comte GIRARD TRUST BANK.
No. 19515. Appeals,
United States Court Third Circuit.
Argued Nov. 1971.
Decided Jan.
As Amended Feb. remains, “But the essence tinue, example, scheme to see the President by dividing governmental that wage Congressional war without declara- among tion, three brandies there was to be not to see executive orders substitute only separation powers system legislation, but a to see secret executive Here, too, agreements cheeks and balances. we are treaties, substitute for danger losing pro- carry the constitutional see Presidential decisions sought tection Congressional programs be afforded. Since government the executive ‘impoundment sug- branch of the label of gested I of funds.’ years has secured and ago exercised more and more several the failure power, part by it, part by seizing Congress proves or will the fail- legislative democracy. the failure of the branch to as- ure of I And still think sert itself. danger nothing less than that.” Kurland, Separation A Comment on Pentagon pa- Power, “After tiie paper ‘crisis’ of the based a statement pers past, expect recedes into the before the House Committee on Govern- Congress published Operations, continue to condone Presi- June University Chicago dential actions find no warrant Law School Congressional legislation. Paper.” IVe will con- “Occasional
OPINION OF THE COURT Judge. GIBBONS, Circuit Appellant, Guy Dubern, Comte citizen and resident is the legatee universal under the last will and Marc, testament of Ellen Wain de St. Marquise Meyronnet de In St. Marc. de diversity in this case sues the Girard Trust Bank over handling of certain securities trans- marquise shortly actions on behalf of the February 26, before her death on legatee Under French law a universal approximate combination sole beneficiary personal representative and of a decedent’s estate under relationship between and Girard marquise decedent was set forth in a agreement May letter dated (Exhibit P-1) establishing what Girard interchangeably Super- refers to vised Advisory Account or an Investment agreement Account. decedent, owner, referred to as the open directs such an account “ Agent . . . and to hold therein as stocks, bonds, all Owner securi- property, ties, and other from time to deposited time . . .
following instructions . ”. The instructions analysis refer to a semi-annual
of the account after review
agreement provides,
Girard. The
how-
ever, that
reviews made
“[t]he
Company
supervisory only,
no action is to be taken with
the Account
the direction
responsibility
and sole
It
Owner.”
provides
Company,
also
“[t]he
Hodgson, Jr.,
Ronon,
C. Clark
Stradley,
Agent,
buy
stocks, bonds,
sell
Young, Philadelphia, Pa.,
&
Stevens
comprising
other investments
or to com-
appellant.
prise
Account, upon
the written
Owner,
person
direction of
or such
Voorhees, Dechert,
Theodore
Price &
persons
as the Owner
from time to
Rhoads,
(R.
Philadelphia, Pa.
Neal
designate by proper
time
written au-
Risley, Philadelphia, Pa.,
brief),
on thority.” Although
management
appellee.
supervised agency accounts was housed
SEITZ,
Judge,
department,
Before
it is clear
Girard’s
GIBBONS,
relationship
KALODNER and
between
dece-
Circuit
Judges.
dent and
was that of
Barclay’s Bank,
compensated
Cannes.
agent, not
that of settlor
inquire, whether, under
and trustee.1
We would then
trustee or cestui
your
Attorney, you
could not
Power
the decedent
March
any required
handle
distribution
attorney
power of
a written
executed
Barclay’s
account.
among
extremely broad
whatever
to make
*3
powers
funds from
authorized Dubern
purchases of other securities.
kind
any bank,
and wherever
sell securities of
to withdraw
located and
though
remittance before
We will await
[*]
if for
[*]
[*]
your
year
reason
[*]
instructions,
end, you might
you
[*]
.desire a
[*]
al-
wire us instructions.”
advised of the execution
attorney
power of
on March
this
P-29).
(Exhibit
acknowledge
It
declined
Girard,
December
Thus
authority
in
the funds
its
Dubern’s
over
acknowledging
authenticity of
while
however,
time,
ap-
custody for some
attorney
power
Dubern,
de-
parently
over the au-
out of concern
to the full
clined to follow instructions
attorney
thenticity
power
of the
specified
agency agreement,
in the
extent
principal’s capacity.
Decem-
over the
On
Exhibit P-1.
agree
finally
to ac-
ber
it did
Dubern,
February 1,
a
knowledge
ex-
to this
Dubern’s
at
on
letter which was received
tent:
February
on
5th and translated
Febru-
question
“It was not
intention to
our
ary 7th, instructed Girard to sell securi-
authenticity
instrument
for-
$115,000
ties in order
raise
and
appears,
warded to us Mr.
It
Prat.
account
transfer
this sum to decedent’s
however, the effect of such a
Power
Barclays
at
Bank. The translation
Attorney
your country
in
from
differs
letter,
P-31, discloses that
Exhibit
here,
practice
our
and some difficulties
dissatisfied about Gir-
Dubern was still
way
thinking.
remain to our
are
We
delay
arriving
long
in
at a
ard’s
decision
you
cooperate
most anxious to
with
in
his in-
to its
act on
with
handling
affairs,
Marquise’s
and
(as translat-
structions. He also wrote
press
legal question
rather
than
ed) :
sug-
further,
we would like to offer
present,
give my
“For the immediate
gestion
may,
present
which
at
ordering
your
pay-
proposal
accord to
least,
in a
resolve our difficulties
signa-
only
my
of funds
satisfactory
manner
of us.
both
solely
the benefit of
ture and
remitting
hesitancy
We
in
Marc,
account of Ellen
de St.
Wain
Advisory
Marc,
Barclays
funds from the Investment
Marquise de
St.
deposit
Marquise’s
Account for
Bank, Cannes.
personal
agencies
depend
only upon
“These various
are
trustee
terms
upon
different
princi-
from trusts.
The trust
insti
of the trust but also
I)les
tution as
does not have
title
and
of the common law and
rules
property
it,
applicable
entrusted to
the title re
of statutes
which
maining
customer;
whereas in the
in-
trust
relation. The liabilities of the
legal
depend
upon
case of a trust
vests
title
stitution as
whether
the„institution.
agency may
per-
be ter
it has failed to use due care in the
by;
party
any time,
minated
formance of the
it under-
duties which
automatically
takes;
depend
and
terminates
on the
trustee
its liabilities as
death of
customer.
the case of
whether it has committed
agency
customer;
Ordinarily
responsibilities
the control is in the
of trust.
whereas
the case of a
settlor
the institution
are more extensive
such control as he
than where it
has reserved
where
acts as trustee
agent,
the terms of the
no lia-
trust. The duties
acts as
and it
incur
powers
of the institution as
bilities as
for conduct which would
are determined
the terms of the con
render
liable if it were trustee.”
1956)
customer;
Scott,
(2d
tract made with the
ed.
the du
I. A.
Trusts
8.1§
powers
(footnotes omitted).
ties and
the institution as
Your
the income indicated
money is
isfactory
of effective
ital
into
large
Paris
(Exhibit P~31)
n X
indexed
present
market. On short
customer
[*]
manner.”
thus covered
devaluation
her
on the
[*]
stocks
may,
age, obtaining
future tax. The
[*]
price
in a
having
above, exempt
of french
term the risk
rather sat-
gold
double
X
[sic]
very was
take
cap- Dubern
power
peal followed.
October
Girard’s answer admitted
February 1,
of no
making findings
case was
It denied
attorney under
in favor
legal
standing to
pleaded
tried
effect
the district
without
letter
affirmatively
Girard.
sue
February
fact,
(Exhibit
court,
receipt of
jury. On
This
entered
with-
acted
ap-
P-
single ground decision
*4
quoted paragraph may
The second
have
con-
court,
it
district
which made without
something
lost
translation.
In
case,
sidering any
issues
event, what
had in
mind was the
plaintiff had failed to
was that the
purchase of a
known as a Rente
bond
damages.
conclud-
The court
Pinay,
government
the
issued
of
only permissible
of
ed that
measure
the
gold,
indexed to
traded on the
damages
comply
to
for an
Bourse,
having
unique
Paris
the
decline,
stock
the
with an order to sell
is
characteristic
was free of all
This,
any, in the
stock.
if
value of the
taxation,
including
payment
the
of
oversimplification
think,
we
Anticipating
French succession taxes.
respect
problem,
the
both with
to
factual
Barclays Bank,
the transfer
in-
to
govern-
context and with
structed
to make
bank
the invest-
ing Pennsylvania law.
Pinay
$115,-
ment in Rente
as soon as the
upon three
court
relied
district
(Exhibit
000 was
from Girard.
received
Refining
cases,
Cot-
Landa
Co.
P-33).
Globe
v.
545,
Co.,
540,
ton
23 S.Ct.
Oil
190 U.S.
years
age.
The decedent
83
was
then
Keystone
(1903),
L.Ed. 1171
47
February
Late
her health deteriorated.
Irwin,
Co.,
Engine
Pa.
Diesel
Inc. v.
411
February
sepa-
21 Dubern sent
two
(1963),
3. “A has violated whose (i) self-help; or has threatens violate his duties discharge; (j) appropriate remedy violation. for such compensation (k) refusal remedy may Such be: employ- contract (a) rescission the contract of an action on ment.” service; (5) an action for and for losses “Foreseeability or Manner of I-Iarm property; misuse of (c) equity Occurrence Its an action in to enforce (l) a sub- provisions express If the actor’s conduct un- of an bringing harm about in stantial factor agent; dertaken another, the actor fact (d) restitution, action fore- should equity.; foresaw nor neither in at law or harm or the accounting; (e) extent of the seen the an action for an not does injunction; in it occurred (f) manner which an action for an being prevent counterclaim; him liable. (g) set-off or may held (2) (h) causing The actor’s conduct to be made legal harm to party brought by cause not to be a third an action (1963); loss Pa. 191 A.2d since French law succes- Markowitz, 108 A. sion not from the de- Vereb 379 Pa. duties collected legatee. (1954). 2d Restate See also cedent’s estate but from the (Second) dichotomy heads-I-win-tails-you-lose Assum of Torts This ing duty principles simply comport a breach not we these does with what recovery here, permit for certain think court’s would be ly appear highly justice. does not extraordi If sense because of nary consequences might paid which tax breach of adverse taxes need flow from a an instruc not have follow for that paid tion then in one or the funds. to sell securities transmit standing to Which the several theories set forth or both Dubern has (Second) recovery. Restatement seek appropriate de this case will will be reversed and pend findings made fact case remanded to the court district the district court. findings fact conclu- shall make suggests light opinion. if the sions of this even dis- law applicable trict court misconceived the judgment dismissing rule of its SEITZ, Judge (concurring complaint should nevertheless be af- dissenting part). (1) firmed was court dismissed com- district (2) established was because Dubern plaint single ground plain- on the that the guilty contributory negligence. damages. tiff failed to grounds We cannot consider these ruling par- basis its findings depend upon
because both
reasonably
ticular
risk of
not
loss was
fact which the district
did
court
principal’s
when
instruc-
foreseeable
judg
make. We cannot
our
substitute
given.
com-
tions were
as the
Insofar
ment on
matters for
factual
plaint
agree
contract,
sounds in
trier of fact who heard
witnesses.
disposition
mat-
district court’s
52(a);
Fed.R.Civ.P.
Plack
Baum
cf.
ter of
fact and of
er,
(3d