Tweed's Case
Lead Opinion
delivered the opinion of the court.
Cоtton iii bales to a large amount was purchased by the plaintiff from different owners of the same, for which he paid a fair market value, as .appears bj the bills of sale exhibited in the record, amounting in the whole to four hundred and ninety-five bales;’[?] that he shipped the same for his own accouut, to his own agents in New Orleans, and that he paid the freight on the same, and the other expenses and insurance. Testimony was also introdücеd by the plain
Prior to those transactions a contract had been made between a supervising special agent of thе Treasury Department and the plaintiff, that the plaintiff should engage in the business of collecting captured and.abandoned cotton in that district. By that instrument it w.as agreed between the parties that the plaintiffs should furnish all money necessary to purchase the cotton, and all the assistance required for. the purpose, and all the requisite transportation, and that he should use all proper efforts to make the purchases and to transport and deliver the same to the other party, at the port of New Orleans, in good shipping order, with receipted bills of sale from the holders, at a cost not exceeding three-fourths of its market value, and. free and discharged of all cost of purchase and expense of transportation. In consideration of nvhich the other party agreed to pay and deliver to the plaintiff three-fourths of the сotton, of average quality, as compensation in full for his services, and all costs' and expenses. Efforts were made by the pláintiff.to make such purchases, but it appears that he soon found that there was no cotton of that description within the said district, and' having learned that'the contract, had been • revoked by the. Treasury Department, he determined to proceed no further under that agreement.
Property of the kind, however, was' seized by another party, to whose transactions it becomes necessary to advert, in order to a full understanding of the present controversy. • .He, the said other party, published á notice for the claimants:' of cotton to appear arid make oath of theirbwnership, stating that if they failed to do so he -would seize it as captured property. Such property was seized by that party, claiming to be an agent to-collect paptured and abandoned property, but the evidence introduced tended to prove that his seizures
Enough is remarked to show the origin of the controversy, as the defendant insisted that the written agreement between his predecessor and the plaintiff was applicable to all the cotton which the plaintiff had purchased and shipped, and that he, as the'successor of the other party to that agreement, was entitled to hold one-fourth of the cotton so purchаsed and shipped, for the United States.
Pursuant to.that claim the .defendant made a division of the cotton, and delivered three-fourths of the same to the plaintiff and retained one-fourth of the whole amount. Demand of the other one-fourth having been refused, the plaintiff instituted .the present suit to recover the residue of the cotton, being one hundred and twenty-three bales, valued at the sum of $17,500. .Service was made, and the defendant аppeared.and made defence.
Proceedings in the meantime took place under the last paragraph of the petition, in which the plaintiff prayed that awrit of sequestration .might be issued, directed to the marshal, requiring him to take the cotton in question into his possession,- and to hold the same subject to the order of the court, and he also prayed fot judgment decreeing that the cotton is his property, and that thе same be delivered to him, or that he have judgment for the value, with interest from judicial "demand, and with privilege upon the property sequestered. Process of sequestration was accordingly issued
Exceptions to the proceeding were filed by the defendant, in which he alleged : (1.) That the cotton is captured property, and that it was at the time the writ of sequestration was issued, and that the property-, as such, was in his possession and. custody for the use and benefit of the United States. (2.) That the Circuit Court is without jurisdiction ,of the case, as the property sequestered is defacto and de jure captured property under'the acts of Congress; and that it should be dealt with as the law provides.
He also filed an answer, in which he denied that the plaintiff was. the owner of the property, and set up the same defence as in his preliminary exceptions. Subsequently the district attorney intervened, and alleged that the United States were the sole owners of the cotton, and prayed that their claim might be allowed and adjudged good, and that the proceedings instituted by the plaihtiff may be disallowed ánd dismissed. Application was made by each party to bond the property, but the application, of the plaintiff was granted and that of the defendant was dеnied.
Unsuccessful in that, the defendant next filed a peremptory exception to. the right Of the plaintiff' to recover in the suit, in which he alleged that the plaintiff was not and never was the owner of the property; that he never owned but a two-thirds interest in fhe same; that the other third interest is, and throughout has been in another party. Hearing was had and the court overruled the peremptory exception and entered a decree recognizing the plaintiff as the lawful owner -of the property. Whereupon the defendant sued out a writ of error and the cause was transferred to this court, where the judgment was reversed because the record did not contain any stipulation in writing waiving a tidal by jury, and the cause was remanded for further proceedings.
Pursuant to .the directions of tl^e mandate the cause came in order for further proceedings; and leave was .granted to
Pour exceptions were taken at-the trial, and the questions which those exceptions present are the only questions open in the case for re-examination. They relate to the instruction given by the court to the jury, and the three requests for instruction presented by the defendant which the court refused to give.
By the bill of exceptions it appears that the court instructed the jury, in substance and effect, as follows: That if the jury believe that the cotton was not captured by the army, nor surrendered to the national forces; that it was not abandoned property nor ever thе property of the Confederate States, but that it was raised on the plantations of private individuals and that it was held and possessed by the owners as private property until the purchase of the same by the plaintiff; that the plaintiff purchased the same oh his own account from such private owners, and that he held the same until, it was taken by the defendant, and that the defendant did not take, hold, or possess it under color of аny law or statute of the United States or any authority of his office or color of the same, but of his-own will, thfen the plaintiff’ is entitled to recover.
Reasonably, viewed it is clear that the instruction given covered every allegation of the claim and every ground of defence set up both in the preliminary exception and in the amended answer. Instructions given by the' court af the trial are entitled to a reasonable interpretаtion, and if the propositions as stated are correct they are not, as a general rule, to be regarded as the subject of error on account of omission's not pointed out by the excepting party, as the party aggrieved, if he supposes the instructions given, are either indefinite or not sufficiently comprehensive, is always
Beyond all doubt evidence was introduced by the plaintiff tending to prove every proposition involved in that instruction, and it is equally clear that the evidence was of a.character to warrant the finding- of the jury. Suppose that is so, still it is insisted-by the defendant that the instruction is erroneous, because it assumes that, the plaintiff, notwithstanding the written agreement to which he was a party, could-make such purchases on his own account, but the bill of exceptions shows that there was no property to be purchased of the kind specified in the written agreement, and that the plaintiff, having ascertained that the authority of the other party had been revoked, determined not to act under the agreement; that the plaintiff purchased the cotton on his own account, and paid -the whole of the purchase-money, and that none of the cotton had ever been captured by our army or surrendered to our military authorities, and that none of it was the property of the Confederate States or had ever been abandoned by the owners.
Tried, as the case was, by a jury, it was certainly prоper that the court-should submit the. whole evidence to their determination; and it is clear that the jury by their finding
Three requests for instructions were made by the defendant, to the effect following :
1. That a writ of sequestration would not lie if the defendant held the cotton in question as deputy general agent-of the Treasury Department, under the acts of Congress relating to. captured or abandoned property.
Sufficiеnt has already been remarked to show that there was no evidence in the case to warrant' the court in submit
2. That the Circuit Court had no jurisdiction by virtue-of the writ of sequestration to direct the cotton to be taken from the possession of the defendant, if the jury find that the same, at the time the writ issued, was in his possession as such agent, under color of the acts'of Congress relating to captured and abandoned property.
But the defendant had no right to seize the cotton in question, as the evidence showed that it had never been captured nor abandoned, and that the title to the same, had become vested in the plaintiff by purchase from the private owners. Proof to show that the theory of the defence in that behalf is correct was entirely wanting. On the сontrary, the defendant himself testified that he had no.évidence ai all to affect it as captured or abandoned property at the time the suit was instituted, which is certainly sufficient to show that the instruction requested was properly refused, as it is settled law that it is error in the court to give an instruction when there is no evidence in the case to support the theory of fact which it assumes.
3. That the defendant, if he held the. possession of th.e cotton, as such agent for the collection of captured or abandoned property, had the right to retain the same, and that the plaintiff cbuld noti recover the property except by suit in the Court of Claims.
■ Throughout the several propositions of the defence, the theory of fact is constantly interwoven, that the defendant held the cotton under color of the acts of Cougress relating to captured and abandoned property, but it is clear that a party cannot be held to have acted under color or by virtue of an act of Congress which did not confer any authority upon him, or any other'person, to perform the act which is in controversy-
Apart from that defence the theory is also constantly set up that the plaintiff during that period could not purchase cottоn of the owners even though it was neither captured nor abandoned property, as he was, by virtue of that agreement, an agent of the United States, .to which two answers-' may be made, either of which is sufficient to show that the theory is unfounded aud without merit: (1.) Because the agreement does not contain any stipulation that the plaintiff should devote his whole time to the business of the agency, nor any other of a character to рrohibit him from purchasing cotton from the private owners if the same was not included in the category of the cotton described in the written agreement. (2.) Because the. written agreement never in fact became operative, as the plaintiff, not finding any such cotton in the -district specified, never made any such purchases.
Nothing need be added in respect to the ruling of the court in denying the motion in arrest of judgment, as the' motion raises the same questions as those involved in the prayers for instruction presented by the defendant and which were refused by the court,.
All that is necessary to add upon the subjeсt is,-that the principal suit having been decided in favor of the plaintiff, the proceeding in intervention must neqessarily fall with the defence set up by the defendant in that suit.
Judgment in each case affirmed.
Notes
Flanders v. Tweed, 9 Wallace, 425.
Castle v. Bullard,
Locke v. United States, 2 Clifford, 580; Express Co. v. Kountze, 8 Wallace, 353.
Mills v. Smith, 8 Wallace, 27.
The Schools v. Risley, 10 Wallace, 115; Law v. Cross,
Russell v. Ely,
United States v. Breitling,
Id.; Goodman v. Simonds, Ib. 359.
Reynolds v. Orvis, 7 Cowen, 272; Bigelow v. Stearns,
Plymouth v. Painter, 17 Connecticut, 593; People v. White,
Dissenting Opinion
with whom concurred Mr. Justice DAYIS, dissenting.
I dissent from the opinion of the- court in these cases-. Tweed, the defendant in error, repaired to the Red River region to purchase cotton, under a written.engagement with a government agent to purchase and pay for the same, and to deliver one-fourth part to the government, upon the express consideration stated in the agreement, that it was well known that a great deal of cotton ¡belonging to the Confederate government'was in that district,- but epuld not be idem tilled, and was kept back by thb parties haying it in possession for fear of its bejng seized. Tweed-was to have the prestige, of government protection; was to purchase any cotton he could find for. sale, without any questions; was to send it'to the government agent at New Orleans, and there three-fourths of it .were-to be set apart to his use and-one-fourth to the use of the government. This was the general purport and effect of the agreement. There cannot be a ■doubt, from the evidence in the case, that he derived great advantage from his semi-official character. But having made his purchases, he concluded that it would be a better sрeculation to have all the cotton than only three-fourths of.it; and; therefore, he ¡sets up the pretence, that'he did not act under the agreement, but on his own independent account. The cotton, however, went forward, protected by the generajl policy of insurance taken out by the government agent, and arrived at New Orleans. The government agent, Flanders,
Tweed sued out a sequestration (a writ in the nature of .the common-law replevin) from the United States Circuit Court of Louisiana, and by virtue, of'that writ one-fourth part qf the cotton held by Flanders, the government agent, for the government,-was taken out of his possession, аnd‘the court, -held' that this was a lawful- exercise of the judicial authority. .
'• Now, on'.the merits v of the case, I cannot concur imthe opinion that Tweed could, under the circumstances, repudiate his agreement; but I think he was bound-by it and by his acts, and was estopped from asserting an independent purchase of-the cotton -on his own account; aud that the charge of the court should have been to that effect, and that the chаrge given aud-,the refusal to charge as requested were erroneous. .
I also hold .that this was a suit against the government \itself. Flanders did not hold the cotton on his own account,' but on government account; and his acts were sanctioned and adopted by the Treasury Department. He ivas acting for the government, and his possession ivas the government’s possession. Whether he was acting lawfully or unlawfully was a question which the court cоuld not decide by an adverse proceeding in a suit brought for the recovery of the cotton.
This is a very different case from that of a replevin brought by the owner of goods unlawfully taken by a- sheriff upon execution against another person. Goods in the custody of the law, seized for the benefit of a private party, in satisfaction of a judgment or to meet an asserted claim, may be replevied by the true owner; but goods claimed by the government itself, as its own goods, and held by its agents in possession, cannot be reclaimed in this manner. They can only be reclaimed by application to Congress, or, in certain cases, to' the Court of Claims.