« ForrigeFortsett »
at the time of its passage. When the fee and salary act of 1879 was enacted neither the West Publishing Company nor any other person in like manner was engaged unofficially in publishing the opinions and decisions of this court. The West Company did not enter upon that work in this state for several years thereafter. In fact, at that time the bar and public in general were advised in regard to the decisions of this court, in advance of the official reports, only by abstracts thereof which were published in the daily newspapers.
Under the circumstances, it would be unreasonable to assume that the Legislature in fixing or prescribing a maximum fee or price that the clerk might exact for a copy of record or paper, also intended to include such copies as the clerk shows he has been furnishing to said company for advance publication.
As a legal proposition, it certainly will not be contended that the clerk of this court, in the event he should refuse to furnish to said company the uncertified copies in question, could be coerced by it to do so by mandamus, under existing laws. That the phrase “copy of record,” etc., as expressed in the schedule of fees means a certified copy has been repeatedly recognized by the Legislature in the provisions incorporated in the several appropriation acts to which we have already referred. It will be noted that these several provisions, among other things, provide that the clerk of the Supreme Court and the other state officials therein mentioned, before receiving their quarterly salary, are required to pay over to the State Treasurer the amounts of money received for "certified copies of the official records, opinions, or papers, etc.” We are aware that an interpretation or construction of a statute by a subsequent Legislature is as a rule not entitled to much weight, for the functions of that body are to enact and not to construe law, but if the word "copy" contained in the fee schedule in question could be said to be of a doubtful or uncertain meaning, these provisions in the subsequent acts of the Legislature would be entitled to some weight as a guide in the interpretation of the meaning of the word "copy" in the fee schedule of the act of 1879. Henderson T. State, 96 Ind. 437, 442; Middleton v. Greeson et al., 106 Ind. 18, 5 N. E. 755. As the provisions in question of the act of 1879 do not apply to or control the clerk in charging or fixing a compensation for furnishing uncertified or unauthenticated copies of the opinions and decisions in controversy, it follows therefore that under the present condition of our laws there is an entire absence of any statutory provision governing or restricting him in the matter.
The Attorney General, in his opposing argument, concedes that, in the absence of any legal restriction or requirement, the clerk is the exclusive judge of the manner of furnishing copies of these opinions. He
finally contends, however, that the clerk has no right to furnish copies of the opinions and decisions of the Supreme and Appellate Courts to the West Publishing Company for advance publication for the reason that the state has a property interest therein and, therefore, is invested with the exclusive right of their publication. The argument is advanced that inasmuch as the state has undertaken to officially publish these decisions, consequently, other persons are impliedly precluded from unofficially publishing them. It is true that section 6 of article 7 of our Constitution provides that "the General Assembly shall provide by law for the speedy publication of the decisions of the Supreme Court made under this Constitution, but no judge shall be allowed to report such decisions." This provision, however, cannot be said to have the effect of prohibiting other persons from unofficially publishing our decisions. In fact, the state has never claimed the right to monopolize the publication of these decisions.
By the above provision of our fundamental law the framers, or molders, thereof recognized not only the importance of having the decisions of the highest court of this state published, but they recognized also the necessity of a speedy publication thereof in order that the people of the state might be advised or informed as eariy as possible as to the law declared or construed by the highest court. It is generally settled by the authorities that the work of the judges of a court cannot be copyrighted. but that the syllabi, or headnotes, prepared by the official reporter of the opinions and decisions of the court as reported may be protected by copyright. Ex parte Griffiths, supra; Banks & Bro. v. West Publishing Co. (C. C.) 27 Fed. 50, 57; Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. 36, 32 L. Ed. 425; 7 Am. & Eng. Ency. of Law, pp. 539, 540.
The policy of the state to permit persons other than the official reporter to publish in advance the decisions of this court has been clearly recognized through its Legislature. In section 7 of an act passed in 1875 (the same being section 5710, Rev. St. 1881), providing for the election of a reporter of the decisions of this court, and fixing the price that might be charged per volume therefor, and giving the reporter the exclusive copyright of each volume published by him, it is expressly provided or declared "that nothing in this act be so construed as to prevent any newspaper of this state from publishing any opinion or abstract of any decision of said court.” In Welling v. Merrill, 52 Ind. 350, 355, this court affirmed that any person could print, publish, and sell the reports of the decisions of this court by purchasing the transcripts thereof from the clerk. While it cannot be said that these decisions are the law of the
state, nevertheless they are the evidence or ions supports that property in statutes. The exposition of what this court construes the state pays the judges and, therefore, owns law to be, and as such are binding upon all the product of their official toil. The same people within the state. Center School Tp. is true as to Legislatures.
* It is v. State ex rel., 150 Ind. 168, 173, 49 N. E. worthy of argument, however, that on this 961. Turning to the decisions of other courts side of the water the proprietary right. of we find that the Supreme Court of the Uni the state in the statutes or judicial opinions ted States, in Banks v. Manchester, supra, has never been affirmed except in the late said: "The whole work done by the judges case in the Supreme Court of Errors of Conconstitutes the authentic exposition and in necticut." terpretation of the law, which, binding every It is a well-known fact that for many citizen, is free for publication to all, whether years in this jurisdiction law magazines and it is a declaration of unwritten law or an newspapers have exercised the right of pubinterpretation of a Constitution or a stat lishing in advance of the official reports ute." See, also, Nash v. Lathrop, 142 Mass. decisions of the higher courts. Not only is 29, 6 N. E. 559. In the latter case, the this true in this state, but likewise in recourt said: "The decisions and opinions of spect to the
spect to the decisions of the higher courts the justices are the authorized expositions of other states. This right so far as we and interpretations of the laws, which are are aware has never been denied or in any binding upon all the citizens.
all the citizens. They de manner controverted by this state, but on clare the unwritten law, and construe and
the contrary, as we have shown, has been declare the meaning of the statutes. Every expressly recognized by the Legislature. citizen is presumed to know the law thus The work of the West Publishing Coindeclared, and it needs no argument to show pany in expediting the publication of the that justice requires that all should have opinions and decisions of this and the free access to the opinions, and that it is Appellate Court and thereby placing them at against sound public policy to prevent this, an early date after they have been handed or to suppress and keep from the earliest down in the hands of the bar and public is knowledge of the public the statutes, or the to be commended. decisions and opinions of the justices. Such It would certainly not be in harmony with opinions stand, upon principle, on substan the policy of this state, as manifested by it tially the same footing as the statutes en in the past, for this court to hold that the acted by the Legislature.”
West Publishing Company, under existing In Banks v. West Publishing Company, laws, should be denied the right of obtainsupra, Justice Brewer presents the ques ing copies of the opinions of this and the tion as follows: “It is a maxim of univer Appellate Court for publication in advance sal application that every man 'is presumed of the official reports. Such a holding would to know the law, and it would seem in virtually serve in effect to suppress or withherent that freedom of access to the laws hold any advance publication of these deor the official interpretations of those laws, cisions, as said company is now engaged in should be co-extensive with the sweep of the doing, and would thereby deprive the bar maxim. Knowledge is the only just con and the people generally of this state from dition of obedience. The laws of Rome were being early advised in regard to the law written on tablets and posted that all to which they are required to yield obemight read, and all were bound to obedience. dience as declared or construed by the higher * * * The majority of the citizens oi courts. the state, in a large sense the lawmakers, As a final conclusion upon the matter heremay determine the conduct of all; but can in involved we express our judgment that knowledge of what is determined be with
the clerk of this court, under the circum. held? This, of course, is more emphatic stances, is, in his discretion, at liberty to ally true as to statutes, but is also true as furnish to said West Publishing Company to judicial opinions which, though not laws, for publication the uncertified or unauthenti. are official interpretations of law. *
cated carbon copies in question at and for a The opinions, at least those of the highest price or compensation less than 10 cents tribunal, are always considered as official
per 100 words. It is clear that at present interpretations of law, both statute and com
there are no legal restrictions upon his right mon, and are binding upon all citizens.
in this respect to the contrary. same argument which supports the
The petition herein is sustained at the cost state's claim of property in judicial opin of the petitioner.
(192 Mass. 552)
MALOON V. BARRETT. (Supreme Judicial Court of Massachusetts.
Essex. Sept. 6, 1906.) BROKERS-SALES-RIGHT TO COMMISSIONS.
Defendant placed certain real estate in the hands of plaintiff, a broker, for sale, directing him not to advertise the same. Plaintiff published an advertisement of the property in good faith, having forgotten his instructions, and a purchaser, learning that the property was for sale by reason of the advertisement, went to defendant direct, as the result of the advertisement, and purchased the property. Held, that defendant was not entitled to deal with the customer in fact secured by plaintiff's efforts, though by unauthorized means, as if defendant himself had secured the customer, and, having sold the property to him, was liable to plaintiff for commissions.
[Ed. Note.For cases in point, see vol. 8, Cent. Dig. Brokers, § 48.]
Report from Supreme Judicial Court, Essex County.
Action by one Maloon against one Barrett. A finding was entered in favor of plaintiff, and the case was reported to the Supreme Judicial Court Judgment for plaintiff on the finding.
Contract by a real estate broker to secure a commission for a sale of real estate to one Arbing, who learned that the property was for sale by reason of an advertisement published in a newspaper by plaintiff, who had been instructed by defendant not to advertise the property in any newspaper. Arbing, who saw the advertisement, went to the defendant direct and bought the property. Plaintiff published the advertisement in good faith, having forgotten his instructions.
A. B. Tolman, for plaintiff. Henry T. Lummus and Chas. Neal Barney, for defendant.
forgotten the restriction not to advertise. That is in substance an agreement that he acted in good faith, and for that reason this case does not come within Sipley v. Stickney, 190 Mass. 44, 76 N. E. 226.
It has been urged on behalf of the defendant that inasmuch as the plaintiff's right to sell was not exclusive of the defendant he had a right to sell to Arbing without paying the plaintiff a commission. That is hardly an accurate statement of his rights. To be accurate, what the defendant would have had a right to do was to sell the property to Arbing without paying the plaintiff a commission if he had secured Arbing as a customer without the aid of the plaintiff. When Arbing went to the defendant solely as a result of the plaintiff's advertisement and informed the defendant that he had "seen the advertisement and that he desired to purchase the property," the possibility of the defendant's securing Arbing as a customer without the plaintiff's aid came to an end, and the defendant knew it. Whether the defendant was or was not harmed by that possibility being ended by the plaintiff's unauthorized act in advertising the property is and always will be a matter of conjecture. The defendant has not proved, and cannot prove, that had it not been for the unauthorized advertisement he would have secured Arbing as a customer.
When the possibility of the defendant's securing Arbing as a customer through his own (the defendant's) efforts was ended by the plaintiff's unauthorized advertisement, one of two results followed: Either (1) the defendant could sell to Arbing, although secured by the plaintiff's efforts, because the possibility of the defendant's securing Arbing as a customer had been brought to an end by the plaintiff's using an unauthorized means, that is to say, the defendant was in the same position that he would have been in had he in fact secured Arbing as a customer; or (2) the defendant (not having secured Arbing as a customer through his own efforts) could not sell to him as his (the defendant's) customer. In the latter case the defendant would not be bound to treat with Arbing as a customer as he would have been bound to do had the means used by the plaintiff been authorized; he could have refused to recognize him as a customer because obtained by the use of means which he forbade the use of. But in the latter case, if he elected to deal with him he would have dealt with him as a customer procured by the plaintiff, since he was in fact secured by the plaintiff, and not as a customer who became such through his own efforts; and having elected
deal with him he would be held to have ratified the means used by the plaintiff to secure him. That is to say, it is a case where the defendant had to accept or reject the plaintiff's action as a whole. He could not ratify it in part and repudiate it in part.
LORING, J. The defendant's first contention is that the plaintiff would not have been entitled to a commission had there been no direction by the defendant not to advertise. It is stated in the agreed facts that the customer "went to the defendant solely as a result of said advertisement." That would have been decisive in favor of the plaintiff had there been no direction not to advertise the property. Gleason v. Nelson, 162 Mass. 245, 38 N. E. 497 ; Dowling v. Morrill, 165 Mass. 491, 43 N. E. 295; Pratt v. Burdon, 168 Mass. 596, 47 N. E. 419; French v, McKay, 181 Mass. 485, 63 N. E. 1068.
The difficulty in the case at bar arises from the fact that the defendant told the plaintiff not to advertise. The plaintiff was employed to find a customer, but was instructed not to use an advertisement as a means of accomplishing that which he was employed to effect. For that reason the case does not come witbin cases like Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Pittsburgh Glass Co. v. Macdonald, 182 Mass. 593, 66 N. E. 415, and Smith v. Wenz, 185 Mass. 229, 70 N. E. 57.
Moreover it is agreed that the plaintiff had
Suit v. Woodhall, 113 Mass. 391 ; Coolidge v. as to preserve for review all questions now Smith, 129 Mass. 554; Eaton v. Littlefield, urged in this court by the plaintiffs in error. 147 Mass. 125, 16 N. E. 771.
The circuit court followed the master's reIn the opinion of a majority of the court port in all particulars except as to some it is not possible to say that the defendant minor questions, and decreed that the plainhad a right to deal with the customer in tiffs in error pay the defendant in error the fact secured by the plaintiff, although by un sum of $32,274.01, and the sum of $721.47 authorized means, as if he had been secured taxed as costs together with other costs of by his own efforts, and the second is the true the suit. The Appellate Court for the First view of the case.
District has affirmed this decree, and the The defendant having elected to deal with case is now before this court for a review of Arbing, the entry must be.
that judgment of affirmance. Judgment on the finding.
The record is voluminous, and the abstract, containing 982 pages, correspondingly so.
Nevertheless, the questions involved are sim(222 Ill. 270)
ple, and no detailed statement of the evidence SIDWAY et al. Y. AMERICAN MORTGAGE
in this opinion is necessary for the proper CO.
understanding or disposition of them. (Supreme Court of Illinois. June 14, 1906. Defendant in error is a corporation orRehearing Denied October 10, 1906.)
ganized under the companies act of Great 1. PRINCIPAL AND AGENT-EMPLOYMENT OF
Britain and Ireland, with a capital stock of AGENT-EVIDENCE.
On a bill for an accounting between prin- | £85,000, with its principal place of business cipal and agents, evidence held to show that the at Edinburgh, Scotland, engaged in loaning contract between the parties was shown by
money. Plaintiffs in error composed a firm correspondence between them, and not by a subsequent oral conversation.
located in Chicago, Ill., and this firm, and 2. SAME--COMPENSATION OF A GENT.
the two firms which successively preceded Under an agreement whereby agents were it, and to whose business, rights, and oblito care for and manage ioans of their principal's gations it succeeded, acted as agents of the money up to and including their maturity and collection, where they had given up the business
mortgage company in this country from 1882 of the principal they could not claim commis
until April, 1896. Leverett B. Sidway was sions on the interest notes not then due and the senior member of each of these firms. thereafter to be collected.
All of these firms will be included under 3. SAME PERFORMANCE OF CONTRACT BY
the designation “the firm” in this opinion. AGENT. Where agents collected money belonging
Plaintiffs in error contend, as stated above, to their principal, but retained it without mak that the moneys for which they were reing report thereof, and represented mortgage quired to account were due them for servloans as outstanding, when, in fact, they had been fully paid to the agents, they were not
ices, and they classify these services under entitled to any commissions.
the following heads, to wit: First, the Cor
bin farms; second, the Oregon frauds; third, Error to Appellate Court, First District.
the Southern inspection; fourth, the ArkanAction by the American Mortgage Com
sas usury cases; and fifth, miscellaneous pany against Leverett B. Sidway and an
services. The critical question in the conother. From a judgment of the Appellate sideration of these claims is whether the Court (119 Ill. App. 502), affirming a judg
agency existed pursuant to a letter dated Dement in favor of plaintiff, defendants bring
cember 21, 1881, being an offer on the part error. Affirmed.
of Sidway, Bogue & Co., accepted by the deLee D. Mathias (Willett H. Cornwell, of fendant in error, as it contends, or whether counsel), for plaintiffs in error. Bentley & the agency for loaning money was created by Burling, for defendant in error.
an alleged conversation or parol arrange
ment in 1884, between Leverett B. Sidway, SCOTT, C. J. The defendant in error filed one of the plaintiffs in error, and Mr. James a bill for an accounting, in the circuit court Tait, representing the defendant in error. of Cook county, against the plaintiffs in er For a clearer understanding of the matter it ror. The plaintiffs in error answered deny should be stated that the firm of Sidway, ing that they had withheld any moneys Bogue & Co., formed in January, 1878, was from the defendant in error to which the composed of Leverett B. Sidway, one of the latter was entitled, but alleging that the de plaintiffs in error, and George M. Bogue, up fendant in error was indebted to the plain to the time when H. T. Sidway, the other tiffs in error in a large sum for services ren plaintiff in error, a son of Leverett B. Siddered, and that there was a large balance way, became a member of the firm. This due the plaintiffs in error on such account. firm was dissolved in July, 1893, and was A general replication was filed to this an succeeded by the firm of L. B. Sidway & swer. The cause was thereupon referred to Co., composed of the plaintiffs in error. the master in chancery to take and report In their letter dated December 21, 1881, the evidence, with his conclusions. Objec addressed to the defendant in error, Sidway, tions were filed before the master and over Bogue & Co., after referring to interviews ili ruled by him, and these objections were re regard to loaning money for the defendant newed as exceptions in the circuit court, so in error, stated: “We will undertake to
make such loans upon five years' time, and to care for and manage them up to and including their maturity and collection, to the best of our ability, for a compensation of 5 per cent. on the amount so loaned, such compensation to include all charges for making the necessary papers and the attorneys' charges for examining the title, the one-half of said charge to be collected from the borrower at the time the loan is made and the remainder to be collected by deducting onefifth part of it from each annual coupon, when collected from the borrower.” The letter further states: "No greater charge than 5 per cent. on the amount ioaned will be made, including the sum collected from the borrower and the sum deducted from coupons, or paid us in any manner by your company, and should it appear advantageous to change the manner of collecting the said compensation we will readily make any equitable change which may appear necessary." At the close of the letter it is said: “We shall at all times take pleasure in advising your board of matters in America which may be of importance to the company's business, and shall aim to maintain such intimate business relations as are in our opinion necessary for securing the best permanent results.”
The directors of the defendant in error, on January 11, 1892, accepted the foregoing offer, subject to the adjustment of the necessary details. In a letter from the secretary of the defendant in error to Sidway, Bogue & Co., care of L. B. Sidway, it was stated that Mr. Sidway had mentioned that it would be some little time yet before the firm would propose to operate for the defendant in error. There was some delay in commencing the business, so far as loaning money was concerned, but shortly after the acceptance of the offer the firm began to transact business for defendant in error in reference to loans and other property interests which it already had in the United States, and the loaning of money by the firm began in 1885.
On the part of the plaintiffs in error it is contended that the contract under which the firm operated after 1884 was a parol agreement, made between Leverett B. Sidway, representing his firm, and James Tait, representing the defendant in error, at the city of Chicago, in the year 1884, under and by virtue of which the defendant in error agreed to furnish Sidway, Bogue & Co. $400,000 each year for five years, to be loaned by them on five-year loans, on which the commissions of the firm would be $20,000 per annum, and by which the firm, from money so furnished and from collections from the principal after the first loans began to fall due, would have $400,000 to loan annually so long as the contract remained in force. And it is further contended by plaintiffs in error that the services rendered before this oral contract was made were rendered under an arrangement, pertaining to those services
alone, which arrangement did not contemplate the loaning of money.
Defendant in error did not furnish $400,000 to be loaned in any one year, and the firm seems to have made no complaint on this score. James Tait is dead, as are others who participated in these transactions, and the testimony of Leverett B. Sidway is the only direct evidence in the record as to the alleged parol agreement. Nevertheless, the master in chancery and the circuit and Appellate Courts rejected his theory of the matter, and found that the services rendered were under and in pursuance of the proposition contained in the letter dated December 21, 1881. We are in accord with the Appellate Court in the views which it expresses in reference to the existence of the alleged oral contract, in the following language: "The improbability that the evidence of so important a contract should be left to rest in parol testimony; the fact that the company had been making a continual breach of the supposed agreement for five years, and yet H. T. Sidway, on his visit to Edinburgh in 1889, made no direct reference to the arrangement of 1884 or its breach; the fact that a careful search failed to reveal anything in the files, records or correspondence of the company showing any reference to such a contract; Sidway's testimony to the effect that the terms of the contract, or its continual breach, or the failure of the company to pay for the extra services, never became the subjects of correspondence between the parties; that Bogue (Sidway's partner) never heard of the contract; all these, and other facts and circumstances appearing in the record, convince us that no such contract was made, and that the finding of the master to that effect is correct, under the evidence."
We agree also with the Appellate Court that the services relating to the Corbin farms and the Oregon frauds, which were of a special character, were settled and paid for long before this suit was commenced, and that the other services for which compensation is claimed, and which plaintiffs in error regard as special or extra in character, while not within the provisions of the alleged oral agreement, are within the terms of the contract as expressed in the letter dated December 21, 1881, and that plaintiffs in error are therefore not entitled to any extra compensation therefor.
The only question remaining for consideration is the claim of the plaintiffs in error for $2,111.56 commissions on unpaid interest, which claim is set forth in the statement of account rendered by plaintiffs in error under date of August 10, 1896. Prior to the time of making this charge the plaintiffs in error had given up the business of the defendant in error. Under the agreement set forth in the letter above mentioned, plaintiffs in error were to care for and manage the loans up to and including their maturity and col-.