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(109 U. S. 881)

TERRE HAUTE & I. Ry. Co. v. STRUBLE.

(November 26, 1883.)

MOTION FOR NEW TRIAL- REVIEW IN SUPREME COURT-JUDGMENT AFFIRMBD

The action of the court below in refusing a new trial is not subject to review in

this court. Upon examination, no error appearing in the ruling of the court upon the admis

sion of evidence or the instructions to the jury, the judgment is affirmed.

298.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

John G. Williams, for plaintiff in error. Jeff. Chandler, for defendant in error. • HARLAN, J. This action was brought by Struble, the defendant in error, to recover damages for an alleged breach of a written contract entered into between him and the Terre Haute & Indianapolis Rail. road Company. A verdict and judgment were rendered in favor of plaintiff for the sum of $10,440. The defendant moved for a new trial and in arrest of judgment, and both motions having been denied, the case has been brought here for review.

By the contract in question, Struble obligated himself to build and keep in good order, on his leased grounds in East St. Louis, Illinois, all necessary stock-yards and feeding-pens suitable for the reception, feeding, handling, loading, and unloading of live-stock which might be shipped or transported over the Terre Haute & Indianapolis Rail. road to and from East St. Louis; to receive and unload all live-stock over that road; to collect all freight and charges on same and pay over to the company or its authorized agents all moneys so collected; to order from the proper agent of the company all cars necessary for the transportation of live-stock from East St. Louis; to load in a proper manner all live-stock for transportation from that place by that company; to bed such cars at a cost to shippers of not more than one dollar per car, to be collected by him from shippers; and to attend to all other necessary matters pertaining to the safe and prompt loading of all such live-stock for transportation over that road.

The company, in consideration of the performance by Struble of the stipulations of the contract, agreed to build all necessary loading schutes for the use of the company connected with said yards; to send all live-stock coming to East St. Louis over its road to Struble's yards, except such as may be specially ordered otherwise by shippers or owners; to pay him 50 cents per load for all stock received by him over the road and unloaded in his yards, and two dollars for each and every car of live-stock loaded by him to be transported by the company from East St. Louis; and to give him the loading of all live-stock wbich may be transported over its road from that city. Struble's yards were completed and opened for business in Decem. ber, 1870. From that date until some time in October, 1873, all live-stock coming to East St. Louis over defendant's line was un. loaded at those yards, and live-stock shipped over that road from that city was loaded by Struble. Early, however, in the fall of 1873 the National Stock-yards were completed and opened for business. They were just outside of the corporate limits of East St. Louis, and near defendant's road. The plaintiff claimed that up to October, 1873, he performed all the conditions of the contract, and was ready, willing, and able to comply with it in all respects until it should, by its own terms, be terminated, but that he was prevented by defendant after that date from fully executing it. All this the defendant depied.

The record contains numerous assignments of error, but we shall notice only such as are relied on in argument. They seem to em. brace every essential question in the case.

1. It is claimed that the court below erred in admitting evidence offered by the plaintiff. The specification under this head refers to ovidence as to the number of cars loaded with live-stock and taken hy the defendant from the National Stock-yards between August 1, 1874, and April 1, 1880. The contention of plaintiff was that, within the meaning of the contract, he was entitled to load those cars, and recover therefor from the defendant the price fixed in the contract for such services; this upon the alleged ground that that stock nad not been specially ordered by shippers or owners to the National Stock-yards, and could have been directed by the defendant to Struble's yards had it made any or proper effort to do so. In this view the evidence objected to was competent, as furnishing a basis to estimate the damages which plaintiff sustained by reason of the breach of the contract, if such breach was established by the evi. dence.

2. The court, among other things, said to the jury that in deter. mining the quantity of stock that would probably have been shipped from the plaintiff's yards, they should include only such as the jury believed would have been possible for the defendant to direct to those yards. In the same connection the court said:

"The jury, in considering the meaning of the words all live-stock which may be transported over the said railroad from East St. Louis,' found in the last clause of the contract sued on, must determine from all the evidence before them what stock is included. The words evidently apply to such stock as in the ordinary course of the defendant's business should be shipped from that point over their line of railroad. It applies to all such stock whether loaded at plaintiff's yards or some other yards used for loading stock so shipped. As already suggested, it should be applied only to stock which it was possible for defendant to have loaded by plaintiff. It does not apply to stock, the owner or shipper of which directed the loading to be done by some person other than the plaintiff, and over the loading of which defendant had no control.”

We are of opinion that there was no error in these instructions. The contract contemplated, upon the part of Struble, all the preparations necessary in and about his yards to meet the necessities of the company's business in the transportation of live-stock; and upon the part of the company that it would do all it could, in the absence of special orders from shippers, to bring live-stock to plaintiff's yards to be by him loaded in cars for transportation over defendant's road. Such was, in substance, the direction given to the jury. The court could not, under any reasonable interpretation of the contract, have said less than it did.

3. It is assigned for error that the court overruled defendant's motion for a new trial. A large part of the printed argument on behalf of defendant is devoted to a discussion of the grounds assigned in support of the motion for a new trial. But the action of the court below in refusing a new trial is not subject to review here. This has long been settled by the decisions of this court. Railroad Co. v. Fraloff, 100 U. S. 24; Wabash Ry. Co. v. McDaniels. 107 U. S. 456; [S. C. 2 SUP. Cr. REP. 932.]

The judgment must be affirmed. It is so ordered.

(109 U. 8. 432)

BAILEY and others v. UNITED STATES.

(December 3, 1883.)

CZAD AGAINST UNITED STATES_PAYMENT TO ATTORNEY ON FACT-REVOCATION

OF POWER OF ATTORNEY.

Payment to an attorney in fact, constituted such by power of attorney executed

by the claimants before the allowance of their claim by congress or by the proper department, is good as between the government and such claimants, where the power of attorney has not been revoked at the time payment is made, notwithstanding the provisions of the act of July 29, 1846, entitled "An act in relation to the payment of claims,” and the act of February 26, 1853, entitled "An act to prevent frauds upon the treasury of the United States.' 9 St. 41, and 10 St. 170.

Appeal from the Court of Claims.
Nathaniel Wilson and J. Hubley Ashton, for appellants.
Sol. Gen. Phillips, for appellee.

HARLAN, J. By a decree passed March 25, 1868, in the district court of the United States for the southern district of New York, certain sums of money were ascertained to be due on account of the illegal capture of the British steamer Labuan and her cargo by a cruiser of the United States. On the sixth day of February, 1869, Will. iam Bailey, William Leetham, James Leetham, and Elizabeth Leetham, British subjects, executed and delivered a power of attorneyin which they described themselves as then or late owners of said

*433

steamer-constituting one A. E. Godeffroy, of New York, their attorney, with authority to receive from the government of the United States, and from all and every person or persons whom it might concern to pay or satisfy the same, all moneys then or which might thereafter become due and payable to them with reference to said vessel Labuan; upon receipt thereof, to execute acquittances, releases, and discharges for the same; and, upon non-payment thereof, to collect said moneys by such necessary actions, suits, or expedients as their attorney deemed proper.

* By an act of congress approved July 7, 1870, it was, among other things, provided "that there be paid, out of any money in the treasury not otherwise appropriated, to William Bailey, William Leetham, and

Leetham, of England, or their legal representatives, owners of the British steamer Labuan, $131,221,30, with interest from June 2, 1862, to the time of payment, and five thousand dollars with. out interest.” The act declares that such sums are due under the before-mentioned decree of March 25, 1868. At the date of this act the owners, in different proportions, of the Labuan were William Bai. ley, William Leetham, and the executors and executrix of John Leetham, who were William Leetham, James Leetham, and Elizabeth Leetham.

An account between the United States and said owners, based upon the said act of July 7, 1870, having been examined, adjusted, admitted, and certified by the proper officers of the treasury, & warrant was made, upon which a draft was issued on the treasurer of the United States for the sum of $200,070.34, payable "to Wm. Bailey, Wm. Leetham, and John Leetham, of England, or their legal representatives, or order." This draft was delivered to Godeffroy, with this indorsement thereon: “Pay on the indorsement of A. E. Godeffroy, atty, in fact. R. W. TAYLOR, Comptroller." The draft having been indorsed in the names of the payees, by himself as their attorney in fact, Godeffroy received the proceeds, but has never paid to the par. ties named in the act of congress, or to any one for them, any part of the sum collected by him from the United States. The treasury department refused, although requested by appellants or their agents, to make further payment. Thereupon this action was brought in the court of claims to recover the amount specified in the act of congress. Judgment was rendered for the United States, and the present appeal questions the correctness of that judgment.

*It is contended, on behalf of appellants, that the power of attorney executed in 1869 to Godeffroy-upon the authority of which alone was payment made to him-was, under the laws of the United States, absolutely null and void; consequently, no payment under it could bind the claimants or discharge the government from its obligation to pay the sums specified in the act of 1870. This presents the controlling question on the present appeal. Its determination depends

V.3—18

435 * 136

upon the construction to be given to the act of July 29, 1846, (9 St. 41,) entitled "An act in relation to the payment of claims," and to the first and seventh sections of the act of February 26, 1853, (10 St. 170,) entitled “An act to prevent frauds upon the treasury of the United States."

The act of 1846 related to claims against the United States allowed by a resolution or act of congress. That statute directed that they should not be paid to any other person than the claimant, his executor or administrator, unless upon the production to the proper disbursing officer of a warrant of attorney executed "after the enactment of the resolution or act allowing the claim." The first section of the act of 1853 declares that “all transfers and assignments hereafter made of any claim upon the United States, or any part of or share thereof, or interest thereon, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, or orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof." That act further provides (section 7) that its provisions and those of the act of 1846 shall "apply and extend to all claims against the United States, whether allowed by special acts of congress, or arising under general laws or treaties, or in any other manner whatever. These enactments have been under examination in several cases heretofore decided in this court, some of which are now relied on to support the proposition that offcers of the treasury were forbidden, by statute, from recognizing Godeffroy, under any circumstances, as agent of claimants, with authority,*as between them and the government, to receive the warrant and draft when issued. But we do not understand that any of these cases involved the precise question now presented for determination.

In U. S. v. Gillis, 95 U. S. 414, it was ruled that a claim against the United States could not be assigned so as to enable the assignee to bring suit against the government in his own name in the court of claims. In Spofford v. Kirk, 97 U. S. 484, the question was as to the validity of certain orders drawn by a claimant before the allowance of his claim, upon the attorneys having it in charge, directing the latter to pay certain sums out of the proceeds when collected, and which orders, being accepted by the attorneys, were purchased by Spofford in good faith and for value. Upon the treasury warrant being issued, the claimant refused to admit the validity either of the orders he had given or the acceptances made by his attorneys. Thereupon Spofford sought, by suit against the claimant and his attorneys, to enforce a compliance with the orders and acceptances, of which he had become assignee and holder. The court adjudged that the transfer or assigment to Spofford was, under the act of 1853,-carried into the

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