eleases and assignments are mutual, and each is the consideration of the other, and it requires no great penetration to see that it was drawn in the interest of Whipple, who signed it, and not in the interest of Ambler, who did not sign it. But it is argued that the paper was procured from Whipple by Martin, the agent of Ambler, at Ambler's request, and was signed by Whipple and delivered it to Martin; that Martin de livered it to. Ambler, who received a copy of it without objection, and promised to sign it. Admitting all this to be true, it is very clear that both parties intended to have a written instrument signed by each as the evidence of any contract they might make on that subject, and neither considered any contract concluded until it was fully executed. Under these circumstances Ambler had a right to decline to sign the paper, and until he signed he was not bound by it. It was not drawn by him, nor at his dictation. It was first signed by Whipple, and drawn up by him or in his presence, and made to suit his purposes. It is idle to say that because Ambler took a copy of it from Martin to examine he became a party to it, though he never signed it. batim, provides that any improvement or mod- *Notwithstanding the bills, cross-bills [*558 and supplemental bills set up both by the patent to Whipple and Ambler and the patent to Whip ple and Dickerson, No. 95,665, and another is sued to them pending the suit, No. 102,662, which are charged by Ambler to be all covered by his invention, and by the others to be totally distinct, none of these patents are found in the record. It is impossible, therefore for this court to give any conclusive opinion or judgment as to how far they are identical, or how far there may be distinctive features, under which the whole or some part of the two latter patents might be sustained. We base our decree on other principles. Further, we are of opinion, notwithstanding Martin's declaration that he acted on Ambler's suggestion, that he was throughout the whole affair acting for Whipple, and governed solely by his interest. This transaction does not, in We are satisfied, from the testimony in the our opinion, establish any release or transfer case, that the results of the experiments conof Ambler's interest in the partnership concern. ducted by Ambler and Whipple in their joint 2. Nor is there any such evidence of abandon-enterprise developed the practicability of sucment of the enterprise on the part of Ambler as to justify the court in holding that he had lost or forfeited his rights in the venture. It is true that about the middle of August he left Washington City for a week or two, but when he returned he found himself excluded from the workshops and from all participation in Whipple's plans, and it seems probable he was, by 557*1 *Whipple's authority, forbidden to go there before he left the city. It is unreasonable to call this a voluntary abandonment of the enterprise. 3. What weight would be given to the charges of bad character, drunkenness and dishonesty in a suit by Whipple to dissolve the partnership we need not here state. If all that is charged were proved in such a suit it would make a strong case for relief, on such terms as equity might impose for the protection of both parties. But they did not authorize Whipple, of his own motion, to treat the partnership as ended and take to himself all the benefits of their joint labors and joint property. It seems also to be a fair inference from the pleadings and other circumstances that Whipple must have known of Ambler's conviction for felony before he entered into the agreement with him. We are, therefore, of opinion that the case shows nothing which deprives Ambler of his rights under the original contract with whipple. 4. We are also of opinion that Whipple is chargeable as trustee for Ambler with one half of all that has been realized or may be realized from the use of the patent to Whipple and Ambler and the patent to Whipple and Dick erson. This conclusion we rest upon the sixth article of the agreement between Whipple and Ambler. This article, which we have already copied ver cess in obtaining the object of their pursuit; that these experiments disclosed the fact that, while they had mainly relied on the effect of heat by steam, applied to petroleum indirectly by encompassing the vessel in which the petroleum was, by the steam, let into an outer chamber, it was found that it was necessary to introduce the steam into the vessel, thus bringing it into direct contact with the petroleum. Whether Ambler had seen this as clearly as Whipple is not very well or satisfactorily shown. But it is proved to our entire satisfaction that when Whipple saw this point, and that through it success was within his reach, he immediately recognized its great value. This experiment was made at the same shops, with the same machines, and in the same pursuit, which for three months had engaged the active energies of both Ambler and Whipple. The weight of evidence is that Ambler was present and assisting, but this is denied by other witnesses. What is clear to us is, that as soon as Whipple recognized the value of this discovery he made up his mind to be rid of Ambler. This decisive experiment is said to have been made on the 21st of August. The book of accounts of expenditures made by Whipple and kept under his direction shows that, up to that date, Whipple and Ambler's names had been used in charging up the items. On the 23d. Ambler's name was dropped, and it was all charged to Whipple. Many declarations of his are proved about this time, of the fortune he would make, and it is proved by F. A. Holden, with whom Ambler had been boarding, that up to this time Whipple had paid for his board without objection, but shortly after notified him he would do so no longer. It appears from of Ambler from the city. Precisely what took place between Whipple and Dickerson will probably never be accurately known. We must judge of that by the results which follow. The first of these was, that on the 16th day of 552*1 September, *only thirteen days after his first sight of the machinery in the workshop, and his first interview in Washington with Whipple, Mr. Dickerson filed in the Patent Office an application for a patent, the specification and claims of which were so nearly like those of Ambler and Whipple and so nearly embody the results of their experiments as to leave little doubt that it originated in the Whipple-Ambler experiments, however much it might differ in some particulars from their patent. This application was pressed so successfully that a patent was issued on it to Dickerson and Whipple on the 12th of October. In the meantime, Dickerson and Whipple had entered into a partnership in the matter, and Ambler was excluded from all control. These facts are undisputed, and taken in con559*] nection *with much other testimony of a direct character convince us that Whipple, in violation of his trust in Ambler, andple, fraud of his rights, deliberately entered upon a scheme by which Ambler was to be deprived of the benefits resulting from success in their joint experiments. That, in pursuit of this scheme, he called in Dickerson, who, without having invented anything, and in a remarkably short space of time, procured letters patent to issue to himself and Whipple which embraced the results of Ambler's discoveries and experiments, whether they embraced anything else or not. For all that has come to Whipple's hands, for all that is included in the patents to him and Dickerson, he is, under the terms of the sixth article of the agreement, a trustee for Ambler to the extent of one half, and must be so charged and held to account in this proceeding. As to Dickerson, while he is not a trustee under that article, we are of opinion that he has so far knowingly connected himself with and aided in the fraud on Ambler, that he cannot resist Ambler's right to an undivided half of both the patents to Dickerson and Whipple, and of the profits made or to be made out of them. What rights or remedies he may have against Whipple, we do not decide. The result of these views is, that the decree of the Supreme Court of the District must be reversed; that a decree must be entered in that court declaring Whipple and Dickerson to hold in trust for the benefit of Ambler to the extent of one half the two patents issued to them, mentioned in the pleadings as 95,665 and 102,662; that an accounting be had as to the profits realized by them, or either of them, from the use or sale or otherwise, arising from said patents and for such other and further proceedings as may be in conformity to this opinion. Witnesses-wife, when a witness-evidencedeclarations of captain of a boat-practice. 1. Under the Act of July 6, 1862, that "the laws of the State in which the court shall be held, shall be the rules of decision as to the competency of witnesses in the courts of the United States," where the statutes of the State declare that the wife is a competent witness for herself, she is a competent witness in an action brought by her husband and herself to recover damages for personal injury to herself. 2. Evidence that a husband and wife were not living together, at the time of an injury, and had not been for some time, is inadmissible on the defense. 3. That the plaintiff paid no fare, by reason of her injury, is no settlement for the claim. 4. What the captain of the boat, on which the intwo days jury occurred, said of the transaction afterwards, was but a narrative of a past occurrence, and not admissible as evidence for plaintiff. 5. A party who complains of the rejection of evidence, must show that he was injured by the rejection. When the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the evidence offered. [No. 69.] Argued Nov. 17, 18, 1874. Decided Dec. 7, 1874. IN ERROR to the Circuit Court of the Unitconsin. ed States for the Eastern District of Wis Suit was brought in the Circuit Court of Milwaukee County, Wisconsin, by the defendants in error, to recover for personal damages sustained by Mrs. Clough. Upon petition of the defendant, the case was removed to the court below, where judgment was given in favor of the plaintiffs. Whereupon the defendants in that court, sued out this writ of error. The case is sufficiently stated by the court. Messrs. John W. Čary and J. P. C. Cottrell, for plaintiff in error: The conversation testified to by Mrs. Clough was hearsay, and was not competent evidence on the trial of the cause, and should have been excluded. The accident occurred at Reed's Landing, in Minnesota. The boat was on its downward passage to St. Louis. Two days afterwards, just as the boat was nearing Davenport, in the State of Iowa, the witness, Mrs. Clough, had a conversation with Captain Hutchinson in regard to the accident that had occurred two days previously, and the statements then made by Captain Hutchinson were given in evidence on the trial as admissions of the defendant. He was not a general agent of the Company. This admission was not a part of the transaction; was not of the res gesta nor in any manner connected with it and, therefore, was not an admission by the Company, nor by which the Company was bound, and was not competent evidence to be received against the defendant. It was mere hearsay. NOTE.-Competency of witnesses in U. S. Courts in civil cases; how far governed by state laws-see notes 17 L. ed. U. S. 168; 5 C. C. A. 602; 21 C. C. A. 278 Mil. and Miss. R. Co. v. Finney, 10 Wis. 388. This rule is the same, whether the principal be a corporation or a natural person. Ang. & Ames, Corp., § 309; 1 Greenl. Ev., 113; 10 Ves., 123, judgment of Sir William Grant; 1 Phil. Ev., 507, note 141; Livesley v. Lasalette, 28 Wis., 38; Story, Ag., §§ 136, 137; Thallheimer v. Brinckerhoff, 4 Wend., 394. Messrs. W. P. Bartlett, H. L. Palmer and Geo. W. Lakin, for defendants in error: The defendants' counsel claim that the declarations of, or conversation had with the captain, are not competent evidence, and an exception is taken to the admission of the above testimony. Here the commanding officer of the boat, and the agent of the Packet Company, immediately or very soon after the accident, states a fact, to wit: the putting out the loose plank, instead of the regular gang plank, to be the cause of the injury. This Corporation, through its agent and employee to whom the safety of the boat and of the passengers were entrusted and confided, acting within the scope of his authority, speaks out and informs us what he and this Corporation then considered to be the immedate cause of the accident. He spoke against his interest. He, no doubt, meant it as a censure on the subordinate employees. The fact to be proved was, that several loose planks were put out, when it was the duty of the employees to put out the regular gang plank. It was natural for the captain, in disclosing these facts, to at tribute the fall to the carelessness of the hands. Mr. Justice Curtis, in the case of The Enterprise, 2 Curt., 321, says: "I am quite sure the practice has been to admit declarations made by the master while in command, concerning any matters which came under his authority as master, though not part of any res gesta strictly speaking." See, also, Burnside v. Grand Trunk Railway, 47 N. H., 554. In the last named case, it is held that the statement of the general freight agent of the Railway Company, as to the condition of goods delivered to him for transportation, made while the goods were in transit, are admissible in evidence against the Company although made eight months after the goods were so delivered. Among other things, the court says that the only question is, whether, at the time these statements were made, the contract with the railroad company was still in the course of execution, and we think it must be so considered. Among the authorities cited in the opinion of the court, are, Demeritt v. Meserve, 39 N. H., 521; Morse v. Connecticut R. Co., 72 Mass., 450; Burgess v. Wareham, 73 Mass., 345. In the case at bar, it will be seen that this conversation was with the master of the boat, the agent of the defendant on board, after the accident and before Mrs. Clough had arrived at her destination. The contract that the defendant had entered into, to take and convey Mrs. Clough from Reed's Landing, Minnesota, to Davenport, Iowa, had not been fulfilled, and was in process of execution. cover damages for personal injuries sustained by her in consequence of alleged negligence of the defendants' servants. The defendants, at the time of the injury, were owners of a steamboat employed by them in carrying passengers and freight on the Mississippi River, between St. Paul, in the State of Minnesota, and St. Louis, in the State of Missouri. During her passage downward, the boat arrived at Reed's Landing in Minnesota, on the afternoon of September 30, 1869, where she stopped to receive passengers. At that place, Mrs. Clough, in attempting to go on board, fell from the gangway provided for entrance to the boat, and received the injury of which complaint is made. Whether the defendants were guilty of negligence, in having failed to provide a proper gangway, or in having failed to keep it in position, was, of course, the important question in the case; and on the trial the deposition of Mrs. Clough was admitted in support of her claim. Exception was taken to its admission, and the decision of the court admitting it, is the first error assigned. In considering this assignment, it is unnecessary to inquire whose will be the damages, if any, which may be recovered; whether they will belong to the husband or to the wife. The competency of the witness or her incompetency, must be determined by the Statutes of Wisconsin, where the case was tried. The Act of Congress *of July 6th, 1862, has enacted [*538 that "the laws of the State in which the court shall be held, shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at common law, in equity and admiralty" (2 Bright. Dig., 204); and the Statutes of Wisconsin very plainly declare that the wife is a competent witness for herself in such a case as this. In 1863, the Legislature enacted that "A party to a civil action of proceeding may be examined as a witness in his or her behalf on the trial, except in actions in which the opposite party sues or defends as administrator or legal representative of any deceased person. And in case of an action for damages for personal injury to a married woman, this section shall be so construed as to allow such married woman to be-a witness on her own behalf, in the same manner as if she were not married." And this is not all. In 1868 another statute was passed (Taylor, Stat., 1599), enacting that "A party to any civil action or special proceeding in any and all courts, and before any and all tribunals, and before any and all officers acting judicially, may be examined as a witness in his own behalf, or in behalf of any other party, in the same manner and subject to the same rules of examination as any other witness." The first assignment of error cannot, therefore, be sustained. The second, third and fourth assignments present substantially the same question, and they may be considered together. After direct testimony had been given by Mrs. Clough that the plaintiffs were married on the 24th day of December, 1845, the defendants proposed to prove by other witnesses that the plaintiffs had not lived and cohabited together as husband and wife since December, 1869; that it was comThis was an action brought by Carlos Clough monly reputed that they had not so lived toand Sarah, his wife, in right of the wife, to re-gether, and that there was a common reputa Mr. Justice Strong delivered the opinion of the court: boat approached Davenport, in the State of Iowa. tion that Carlos Clough was living and cohabit- | in the afternoon. Two days afterwards, as the ing with another woman. This proof the court refused to receive. It was offered for two avowed purposes: one in mitigation of damages, and the other to disprove the fact alleged in the declaration that the plaintiff's were husband and wife. But how, if received, it could have tended to mitigate damages has not been made plain to us. The suit, as we have seen, was for an injury inflicted upon the wife. Surely the injury was the same whether the husband lived with her or not. And the evidence was inadmissible for the other purpose for which it was offered. It is true, ordinarily, the general issue in an action of trespass on the case imposes upon the plaintiff the necessity of proving all the material facts averred in the declaration, but the ability of the plaintiffs to sue is not a fact directly averred and, therefore, it cannot be disproved under a plea of not guilty. In fact it is not put in issue by such a plea. The defense, that the plaintiffs suing as husband and wife are not married, goes to the form of the writ, 539*] rather than the cause of action, and it should, therefore, be pleaded in abatement, and not in bar. Thus, in Chitty's Pleadings, p. 392, it is laid down as a proper plea in abate ment to the form of the writ that the plaintiffs or defendants suing, or being sued, as husband and wife, are not married. And in Stephens, Pl., p. 160, it is said "the plea of not guilty in trespass on the case operates as a denial of the breach of duty, or wrongful act alleged to have been committed by the defendant. But not guilty will apply to no other defense than a denial of the wrongful act." The general issue at length is that the defendant is not guilty of the grievances laid to his charge, in manner and form as the said plaintiff hath above thereof complained against him, and of this he puts himself upon the country, etc. 1 Chit. Pl., 432. While, since the time of Lord Mansfield, the scope of this issue has been much enlarged, it has not been supposed to extend to a denial of the ability of the plaintiff to sue. In Coombs v. Williams, 15 Mass., 243, it was ruled that in the trial of an action upon a promise to a feme sole, Applying this rule to the present case, how brought by her husband and herself after mar- does it stand? The thing of which the plainriage, it is not competent for the defendant un- tiffs complain was negligence, on the 30th of der the general issue to prove the illegality of September; a fault in providing for Mrs. the marriage, such matter being wholly in Clough's embarkation on the steamer. That abatement. True, this was in an action of as- and that alone caused the injury she sustained. sumpsit, but the general issue is as broad, in That and nothing else was the "res gestæ." such a case, as it is in case for a tort. And if What the captain of the boat said of the transthis were not so, even if in the state of the plead-action two days afterwards was, therefore, but ings the defendants were at liberty to prove that the plaintiffs were not husband and wife, they could not prove it by such evidence as that which they offered. Cohabitation as husband and wife may tend to prove marriage, but noncohabitation has not been accepted as disproving the existence of the marital relation in the face of uncontradicted evidence that a marriage in fact had taken place. The fifth assignment of error is without any foundation. It would be very extraordinary were we to hold that the plaintiff had settled 540*] and discharged her claim upon the *defendants without any intention or understanding on her part to give it up. The next assignment is more important. The accident by which the plaintiff was injured occurred at Reed's Landing, in Minnesota, on the 30th day of September, 1869, about two o'clock a narrative of a past occurrence, and for that of Burnside v. R. Co., cited from 47 New Hamp., 554, simply decides that the statements of the general freight agent as to the condition of goods delivered to him for transportation made while the goods are still in transit, or while the duty of the carrier continues, are admissible in evidence against the company. This was Judgment reversed and a venire de nova awarded. CO., Piff. in Err., v. a case of contract not executed, and, while it THE NORTHWESTERN UNION PACKET remained unexecuted, the agent had power to 542*] vary it; had, in fact, complete *control over it. The transaction was still depending, and the agent was still in the execution of an act which was within the scope of his authority. But in the present case the declara tions admitted were not made in the transaction of which the plaintiffs complain, or while it was pending. They refer to nothing present. They are only a history of the past. EUPHRALIA F. VILES. The case of Packet Co. v. Clough, ante, 406, followed-declarations of captain, when not admissible to prove negligence. The errors assigned in this case are the same as those which were considered in the case of the same plaintiff against Clough, ante, 406; and that case governs this. Declarations of a captain of a boat, in regard to made after the occurrence, are inadmissible in evia transaction resulting in an injury to a passenger, dence, in an action to recover damages for such injury. [No. 70.] It is argued they were made before the voyage upon which Mrs. Clough entered was completed. True, they were; but they were not the less mere narration. The accident was past. The injury to Mrs. Clough was complete. The only wrong she sustained, if any, had been consummated two days before. We cannot think the fact that she had not arrived at her port of destination is at all material. If she had left the steamer before the declarations were made it is not claimed, as certainly it could not be that they were admissible. Now, suppose two persons were injured by the negligence which IN ERROR to the Circuit Court of the United the plaintiffs assert, and one of them had left the boat before the captain's declarations were made, clearly they would have been inadmissible in favor of the person whose voyage had had been completed. This is not denied. Yet the connection between them and the accident would be as close in that case as in this. Can they be admissible in the one case and not in the other? Assuredly not. We must hold, therefore, that there was error in admitting in evidence the statement of the captain of the steamboat made two days after the wrong was done of which the plaintiff's complain. The last assignment of error is the rejection of the deposition of Turner. Of this it is sufficient to say that we have not before us either the deposition or any statement of what it tended to prove. We cannot know, therefore, that it was of any importance, or that, if it had been admitted it could have had any influence upon the verdict. A party who complains of the rejection of evidence must show that he was injured by the rejection. His bill of exceptions must make it appear that if it had been admit543*] ted, it might have led the jury* to a different verdict. This must be understood as the practice in this court, and such is the requirement of our Twenty-first Rule. By that rule it is ordered that when the error assigned is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence offered, or copy the offer as stated in the bill of exceptions. This is to enable the court to see whether the evidence offered was material, for it would be idle to reverse a judgment for the admission or rejection of evidence, that could have had no effect upon the verdict. But for the reception of the statement made by the captain, shortly before the arrival of the boat at Davenport, the judgment must be reversed. Argued Nov. 17, 1874. Decided Dec. 7, 1874. States for the Eastern District of Wisconsin. The history and facts of this case are substantially like those of the preceding case of in error was injured in the same accident with The Packet Company v. Clough. The defendant Mrs. Clough, and the proof in the court below conversation of Mrs. Clough with the captain was the same in the two cases, including the of the steamer. At the time of this conversation, however, the defendant in error in this case had already completed her voyage and left the steamer. For a full statement of facts of the case, see the preceding case. for plaintiff in error. Messrs. Matt. H. Carpenter and N. S. Mr. Justice Strong delivered the opinion of the court: The errors assigned in this case are the same as those which were considered in the case of these plaintiffs against Clough and wife, just decided, except that some assigned in that case have not been assigned in this. The rejection of Turner's deposition, and the admission of the captain's declarations to Mrs. Clough, are the only matters now brought to our attention. We need add nothing to what we have said in the former case. The same reasons that required the reversal of the judgment obtained by Clough and wife, require the reversal of this judgment. Indeed the error here is more apparent. It does not appear that the conversation of the captain with Mrs. Clough occurred before the plaintiff left the boat, and before the relation as a passenger to the defendants or to the captain had ceased. In fact the contrary appears. The judgment of the Circuit Court is reversed and a venire de novo is directed. |