sonally in the matter. It is there said: "The Such being our view of the case, it is unnec
President is pleased to remit all of the sentence, essary to consider any of the other questions [561]
except so much thereof as directs cashiering. ." which were referred to the court of claims.
If all the rest of the order was the result of the Neither do we decide what the precise form of
personal action of the President, why was it an order of the President approving the pro-
referred to here and not elsewhere? Might it ceedings and sentence of a court martial should
not fairly be argued from this that the rest was be; nor that his own signature must be affixed
deemed departmental business, and that part thereto. But we are clearly of opinion that it
alone personal which required the exercise of will not be sufficient unless it is authenticated
the personal power of the President, under the in a way to show otherwise than argumentative-
Constitution, of granting pardons. And be- ly that it is the result of the judgment of the
sides, according to the order as it stands, this President himself, and that it is not a mere de-
action of the President was had, not on "the partmental order which might or might not
whole proceedings," but "in view of the unani- have attracted his personal attention. The
mous recommendation of the members of the fact that the order was his own should not be
court," "the former good character" of the ac- left to inference only.
cused, and "in consideration of evidence, by
affidavits, presented to the War Department
since the trial," and "credible representations."
If "the whole proceedings" had actually been
laid before him, as required by the article of
War, it was easy to say so.

"

Then, again, at the end of the order are these words, "which [the sentence] will be duly ex[560] ecuted. That which immediately preceded related to the remission of a part of the sentence, and the Secretary was careful to say that this was done by the President in person. The omission of any such language, or implication even, in the words which were added, leaves the order open to the construction that the Secretary was acting all the time on the idea that the personal judgment of the President was required only in reference to that part of the proceeding which involved the exercise of the pardoning power, and that the rest belonged to the Department.

The judgment of the Court of Claims is re
versed and the cause remanded, for further pro
ceedings in conformity with this opinion.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.

JOSEPH SHIPPEN, Piff. in Err., [575]

v.

THOMAS M. BOWEN.

(See S. C. Reporter's ed. 576-583.)

Sales-express warranty-creation of--affirma
tion of quality or condition—uction of tort for
breach of an express warranty in municipal
bonds-deceit pleading-scienter- erroneous
instruction.

quality or condition of the thing sold, other than as
matter of opinion or belief, at the time of sale, for
the purpose of assuring the buyer of the truth of
the facts affirmed, and inducing him to make the
purchase, such affirmation, if so received and relied
on by the purchaser, is an express warranty.

1. Where the seller makes an affirmation of the

Still further, it appears, from the order of
President Hayes, that "the record of official
action" showed that "on the 16th of January, 2. In an action to recover damages for the sale
1873, W. W. Belknap, then Secretary of War, of municipal bonds to the plaintiff, alleged to have
approved the proceedings of said court," and been forgeries, it is held that the original com-
plaint made a case in tort for the breach of an ex-
thereupon issued the order from the War Depart-press warranty in the sale of the municipal bonds;
ment announcing that Runkle was cashiered, that said cause of action in tort was not obliterat
and that after this order was issued, but on the ed, or removed from the case, because it was joined
with a cause of action for deceit; that no particular
same day, Runkle presented to President Grant phraseology or form of words is necessary to create
a petition setting forth, among other things, a warranty of the character claimed; that it was
"that the proceedings of said court had not error to instruct the jury that the plaintiff could
been approved by the President of the United the part of the defendant; and that the plaintiff
not recover unless he established the scienter upon
States as required by law." This petition was was entitled to go to the jury upon the issue of ex-
not only received by President Grant, but it was press warranty as to the genuineness of the bonds
by him referred to the Judge-Advocate-General and coupons in question.
for "review and report.
[No. 253.]
Upon this reference
the Judge-Advocate-General acted and reported
Submitted April 22, 1887. Decided May 27,
on the whole case. President Grant did noth-
ing further in the premises, and the matter re-

"

1887.

mained open when President Hayes came into N ERROR to the Circuit Court of the United

office. He then took it up as unfinished business,
and, acting as though the proceedings had never
been approved, entered an order of disapproval.
Under these circumstances, we cannot say it
positively and distinctly appears that the pro-
ceedings of the court martial have ever in fact
been approved or confirmed in whole or in part
by the President of the United States, as the
Articles of War required, before the sentence
could be carried into execution. Consequent-
ly, Major Runkle was never legally cashiered
or dismissed from the Army, and he is entitled
to his longevity pay, as well as that which he
has already received for his regular pay, both
before the order of Secretary Belknap was re-
voked and afterwards.

States for the District of Colorado. Reported below, 4 McCrary, 59. Reversed.

The history and facts of the case appear in
the opinion of the court.

Messrs. George E. Adams and J. M.
Holmes, for plaintiff in error:

The rule is well settled that when a party
sells, for a valuable consideration, forged pa-
per, the injured party has two remedies: one
ex contractu, the other an action on the case
for deceit.

It is equally well settled that in an action on the case for deceit no scienter need be alleged, nor if alleged need it be proved.

Schuchardt v. Allens, 68 U. S. 1 Wall. 359 (17:642); Chitty, Pl. 137; Williamson v. Allison, 2 East. 446; Adamson v. Jarvis, 4 Birg. 66:

Charnley v. Dulles, 8 Watts & S. 353; People's | Counties to Fund Their Outstanding Indebted Bank v. Kurtz, 99 Pa. 344; Converse v. Blum-ness;" but which instruments, it is alleged, rich, 14 Mich. 108. See also Lockridge v. Fos ter, 4 Scam. 570; Parham v. Randolph, 4 How. (Miss.) 435; Rosevelt v. Fulton, 2 Cow. 129; Miner v. Medbury, 6 Wis. 295; Lewis v. McLemore, 10 Yerg. 206; M'Ferran v. Taylor, 7 U. S. 3 Cranch, 270 (2:436); Glasscock v. Minor, 11 Mo. 655; Fisher v. Mellen, 103 Mass. 503; Collins v. Denison, 12 Met. 549; Elliott v. Boaz, 9 Ala. 772; M'Cormick v. Malin, 5 Blackf. 509; Munroe v. Pritchett, 16 Ala. 785.

[578]

[579]

that at the time of the sale he made no state- | no scienter need be alleged, nor if alleged need ment, representation or warranty as to their gen- be proved. I am unable to concur in the uineness or validity, but on the contrary stated soundness of this proposition."

As was

that he knew nothing of the circumstances un- We are of opinion that it was error to instruct
der which they were issued; that he had neith-the jury that the plaintiff could not recover, in
er notice nor knowledge of any want of valid- the present action, unless he established the
ity or of any defects in said bonds, nor notice scienter upon the part of the defendant. The
of any facts which would have aroused suspi- original complaint-though, perhaps, not in
cion in reference to them; that, in the sale of the most concise language-made a case in tort
said bonds to plaintiff, he was acting as the for the breach of an express warranty in the
agent of Charles W. Tankersley, from whom sale of the bonds. The bill of exceptions states
he had received the bonds shortly before their that the evidence, in behalf of the plaintiff,
sale, but did not at the time disclose to plaintiff tended to show that, although the defendant
his agency."
knew or had reason to suspect, when the bonds
The court charged the jury that, upon the were sold, that they were not genuine and valid,
facts conceded before them, the bonds, by rea- he "expressly affirmed their regularity and
son of certain unauthorized alterations of the validity.' These words may not necessarily
coupons, were not valid and genuine obligations import an express warranty. But no particular
of the County of Clark. The jury were also phraseology or form of words is necessary to
instructed that whoever sells such instruments create a warranty of that character.
as those delivered to the plaintiff, "if nothing held by the Court of Appeals of Maryland, in
whatever be said in respect to their character, by Osgood v. Lewis, 2 Harr. & G. 495, 518, "An
the act of selling warrants them to be the gen-affirmation of the quality or condition of the
uine obligations of the county; that is, that they thing sold (not uttered as matter of opinion or
are not forged or counterfeited, but are the true belief), made by the seller at the time of sale,
and proper obligations of the county, such as for the purpose of assuring the buyer of the
they purported to be on their face; and upon an truth of the facts affirmed, and inducing him to
action for breach of warranty, or an action make the purchase, if so received and relied on
upon the contract, the defendant would un- by the purchaser, is an express warranty. And
doubtedly, beyond all question, be liable for in case of oral contracts, on the existence of
the amount which he received for the bonds; these necessary ingredients to such a warranty,
***but this action is not of that character, that it is the province of the jury to decide, upon
is, it is not an action upon the contract alone. considering all the circumstances attending
As I said to you in the outset, it is an action the transaction." To the same effect are Hen-
for a false representation, or for a misrepresen-shaw v. Robins, 9 Met. 83, 88; Oneida etc. Soc. v.
tation, of fact, and there must be something
more to maintain this action than the im-
plied warranty which arises from the act of
selling, and which is an inference of law com-
ing from the act of selling. The court said
further upon the subject of warranty: "It is
not claimed that there were any direct represen-
tations in respect to the genuineness of those
bonds made at the time of the sale thereof, ex-
cept in this way: I think Mr. Shippen states
that the defendant said he would warrant the
title to the bonds. I will not undertake to re-
peat what the witnesses said in respect to that
matter; the only witnesses were the parties to
the suit, I believe, as to what was stated at the
time." Without giving more of the charge, it
is sufficient to say that its scope is indicated by
the circuit judge in the opinion delivered by
him when denying the plaintiff's motion for a
new trial. He said: "The complainant charges
that, to induce plaintiff to purchase certain
bonds, the defendant represented that they were
genuine and valid bonds; whereas, in truth and
in fact, they were worthless forgeries. The
court charged the jury that it was necessary
for plaintiff to show that the defendant, at the
time of the sale of the bonds to the plaintiff,
misrepresented the facts concerning their gen-
uiness. In other words, the court was of the
opinion, and so charged the jury, that plaintiff
could not recover in this action by merely prov-
ing a sale of the bonds to him by defendants
and that the bonds were forgeries. It was held
to be necessary to prove knowledge on the part
of the defendant of the forged character of the
bonds, or an express misrepresentation concern-
ing the fact of their genuineness. The counsel
for plaintiff insists that in such a case as this

Lawrence, 4 Cow. 440; Cook v. Moseley, 13 Wend. 278; Chapman-v. Murch, 19 Johns, 290; Hawkins v. Berry, 5 Gilm. 36; McGregor v. Penn, 9 Yerg. 76, 77; Otto v. Alderson, 10 Smedes & M. 476. The plaintiff was clearly entitled to go to the jury on the issue as to an express warranty. But he was, in effect, denied that right by the instruction that he could not recover in this action, unless he proved a scienter. It is true his pleadings also contained every allegation essential to support an action for deceit, apart from the issue as to express warranty. But the cause of action in tort for the breach of the express warranty was not obliterated, or removed from the case, because it was joined with a cause of action for deceit. In Schuchardt v. Allens, 68 U.S. 1 Wall. 359, 368, [17: 642, 645], which was an action on the case for a false warranty on the sale of certain goods the declaration also containing a count for deceit-the court said that it was now well settled, both in English and American jurispru dence, that either case or assumpsit would lie for a false warranty, and that, "Whether the declaration be in assumpsit or tort, it need not aver a scienter; and if the averment be made, it need not be proved." It was also said that, “If the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action." See also Dushane v. Bene dict, 120 U. S. 636 [ante, 810] In 1 Chitty's Pleadings, 137, the author says that case or assumpsit may be supported for a false warranty on the sale of goods, and that, "In an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the

[582]

[No. 295.]

Decided May 27, 1887.

A States for the Eastern District of Texas.

PPEAL from the Circuit Court of the United

Opinion below, 18 Fed. Rep. 696. Affirmed. The history and facts of the case appear in the opinion of the court.

Mr. Eppa Hunton, for appellants: "Courts of admiralty usually consider the following circumstances as the main ingredients in determining the amount of the reward to be decreed for salvage service:

(1) The labor expended by the salvors in rendering salvage service.

declaration, nor, if charged, could it be proved." In Lassiter v. Ward, 11 Ired. 444, Ruffin, C. Argued May 6, 1887. J., citing Stuart v. Wilkins, 1 Doug. 18, and Williamson v. Allison, 2 East, 446, said: "It was accordingly there held that the declaration might be in tort, without alleging a scienter, and if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is that, when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort, as well as ex contractu, on false warranties." And so in House v. Fort, 4 Blackf. 293-4, it was said that [583] "The breach of an express warranty is of itself a valid ground of action, whether the suit be founded on tort or on contract;" and that, "In the action on tort, the forms of the declaration are, that the defendant falsely and fraudulently warranted, etc., but the words falsely and fraudulently, in such cases, are considered as only matters of form." But as to the scienter, the court said, "that is not necessary to be laid, when there is a warranty, though the action be in tort; or, if the scienter be laid, in such a case, there is no necessity of proving it." See also Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Harr. & G. 495, 520; Trice v. Cockran, 8 Gratt. 450; Gresham v. Postan, 2 Car. & P. 540.

(2) The promptitude, skill, and energy displayed in rendering the service and saving the property.

(3) The value of the property employed by the salvors and the danger to which it was exposed.

(4) The risk incurred by the salvors in securing the property from impending peril. (5) The value of the property saved. (6) The degree of danger from which the property was rescued."

The Blackwall, 77 U. S. 10 Wall. 13 (19: 874). It will be found that every one of these circumstances formed ingredients in this case.

The risk was that of wrecking the lighter and steam tug, at the possible risk of life. Risk of life is not a necessary ingredient, but it places the salvors in a higher position of merit and entitles them to a more liberal compensation.

Spencer v. The Charles Avery, 1 Bond. 119; The William Beckford, 3 C. Rob. 355; The Em ulous, 1 Sumn. 214; Tyson v. Prior, 1 Gall. 133; The Henry Eubank, 1 Sumn. 400; Bearse v. 340 Pigs of Copper, 1 Story, 326; Mason v. The Blaireau, 6 U. S. 2 Cranch, 240 (2: 266). Mr. John H. Thomas, for appellees:

Both of the appellants' tugs were employed by the agent of The Hesper, and sent to her assistance. Their right to compensation was not like that of ordinary salvors, contingent on success. They were entitled to compensation for the time and labor they might expend, whether their operations should be successful or otherwise.

The Sabine, 101 U. S. 390 (25: 984); The Undaunted, 1 Lush. 90; The Kellar, L. R. 6 P. D. 97; The H. B. Foster, 1 Abb. Adm. 234.

Even if their right to compensation had been contingent on success, a proper measure of award would have been the amount for which such service would probably have been undertaken, for compensation dependent upon such contingency.

Ehrman v. The Swiftsure, 4 Fed. Rep. 467; Baker v. Hemenway, 2 Lowell, 501; The James T. Abbot, 2 Sprague, 101; The M. B. Stetson, 1 Lowell, 119, 123.

The award of $4,200 is 44 percent of $100,000, the value of The Hesper. The amount and

1. A salvage service which does not involve risk
of property, peril of life or limb, unusual expense,
gallantry, courage or heroism, is a salvage service
of the lowest grade.
2. This court may, in cases of salvage as in other
admiralty cases, revise the decree appealed from
for matter of law, only; and it should not alter the
decree for the reason that the amount awarded ap-
pears to be inadequate or excessive, unless the dif-percentage are both large in comparison with
ference is so great that, upon any reasonable view the awards made by the best admiralty courts
of the facts found, the award cannot be justified by in this country and England, even to passenger
the rules of law applicable to the case.
3. An appeal in admiralty from the district court and freight steamers, where human life as well
to the circuit court vacates altogether the decree as property was saved, taking into account the
of the former and the case is tried de novo in the duration and character of the services.
circuit court. The award of the district court in
favor of the appellant may be decreased on appeal,
Although the appellee did not appeal.

Brooks v. The Adirondack, 2 Fed. Rep. 387; | Atlas Steamship Co. v. The Colon, 4 Fed. Rep.

[257]

The circuit court, on appeals in admiralty, takes up the case de novo. It cannot, like other appellate courts, simply affirm or reverse the decree appealed from. It must render its own decree, as the whole testimony before it may render proper. There was no impropriety, therefore, in the circuit court decreeing for aber was well found and well manned in every smaller amount than that decreed for by the district court.

"4. That, in the meantime, the sea, which had been smooth, with very little swell, bad become more turbulent and there was a very decided increase in the ground swell from the southeast. No so much, however, but that small boats were flying around the Hesper, and life-boats were running easily to and from shore. At this time of stopping hauling by the Estelle the master of the Hesper requested the Estelle to come alongside and run a heavy anchor out seaward from the Hesper, both to keep the Hesper from drifting further in, and for the Hesper to heave on to pull herself off. This the master of the Estelle refused to do, on the ground that there was too much sea on, and that he would thereby endanger his own boat, and thereupon the Estelle, taking aboard the Hes"1. That, about 5.45, A. M., of the 12th day per's agent, who had come overland, proceedof December, A. D. 1882, the steamship Hes-ed back to Galveston, to procure more assistper, bound on a voyage from Liverpool to Gal-ance. It was then found that the Estelle was veston, being out of her course, ran aground at making some water from a leak caused by a the southwest side of Galveston Island, about defect in the staff of the stuffing box, which twenty miles southwest from Galveston, and was not tight enough, and was worked loose