e was taken to the supreme court of the territory. In that court, as we have seen, the action of the trial court was reversed and ■ decree rendered in favor of Mrs. Amy. The assignments of error are twenty-four in number, and the argument by which their correctness is sought to be maintained has taken a much wider range than the condi-jecting the evidence which it had received, tion of the record justifies. It is settled that on error or appeal to the supreme court of a territory this court is without power to reexamine the facts, and is confined to deter184 mining* whether the court below erred in the conclusions of law deduced by it from the facts by it found, and to reviewing errors committed as to the admission or rejection of testimony when the action of the court in this regard has been duly excepted to, and the right to attack the same preserved on the record. Harrison v. Perea, 168 U. S. 311 [42: 478], and authorities there cited.

The findings of fact and conclusions of law of the supreme court are as follows:

"Eleventh. The court further finds that the said Jennie Amy was married to one Elliot Butterworth in 1875.

committed in admitting certain evidence. But all the evidence objected to was received by the trial court subject to the objection, and the question of its admissibility turned on that of its irrelevancy or the quantum of proof which it would establish if considered. The ultimate action of the trial court in resubject to objection, amounted, in effect, to a decision that the evidence did not establish that the judgment in the divorce proceedings had been rendered after due publication of summons in accordance with the laws of the territory, and therefore the evidence was insuficient. But the express finding from all the evidence by the supreme court of the state is that the summons in the divorce suit was duly issued and published according to law, and that the defendant had, besides, personal notice of the pendency of the suit. This conclusion, being binding on us, establishes that the evidence was relevant and material, and that there was 1.0 ground to reject it. We cannot, therefore, say that the evidence should have been disregarded because it did not establish the facts, which we are bound to conclude it did fully prove. If specific findings of each item of evidence and the conclusions deduced from the separate items had been made, as in Cheely v. Clayton, 110 U. S. 702 [28: 298], the case would present a different aspect. Considering, however, the state of the record and the nature of the findings of fact certified, we cannot determine the correctness of the objections to the evidence without going into its weight and making independent conclusions of fact; in other words, without disregarding the findings made by the court below, by which we are concluded. The same reasoning is applicable to the other assignments of error. Thus, the thirteenth, fourteenth, seventeenth, and eighteenth assert "That the said Elliot Butterworth married that the court erred in holding,*as to the bur-[186] a second wife on the 11th day of October, den of proof, that it erroneously treated the 1880, being the year after said decree of di- denial of the validity of the judgment of divorce was rendered; that his second wife is vorce by the maternal aunts as a collateral still living, and she and the said Elliot But-attack by them on such judgment. But terworth are still husband and wife; that as the issue of said second marriage the said Elliot Butterworth and his present wife have seven children, ranging from two years to fifteen years old.

"That on the third day of September, 1879, the probate court of Washington county made and entered a decree of divorce, dissolving the bonds of matrimony theretofore existing between the said Jennie Amy and the said Elliot Butterworth, and absolutely releasing the said Jennie Amy and the said Elliot Butterworth from all the obligations of said marriage; that the said probate court so granting said decree of divorce was a court of competent jurisdiction and had jurisdiction of the subject-matter of said divorce action and of both the parties thereto.

"That the said defendant therein, Elliot Butterworth, had knowledge at the time of the said divorce proceedings and was duly served with process in said action.

there are no findings which raise these questions. On the contrary, the facts found render them wholly immaterial, for it is obvious that if the evidence affirmatively established, as the findings declare, that the judginent of "That afterwards, to wit, on April 4, 1886, divorce was rendered after due summons, and the said Jennie Amy, the claimant in this that the defendant had personal notice of proceeding to the estate of the said Oscar A. the proceedings, the questions of burden of Amy, deceased, was duly and lawfuny mar-proof and collateral attack are wholly irrele ried to the said Oscar A. Amy, and continued vant. Again, the twenty-first and twentyto be and was his lawful wife at the time of second assignments of error complain that the his death." court erred in holding that it was not necesFrom these findings it deduced the follow-sary that there should be an order of the ing legal conclusion: 185] That the said Jennie Amy is now the widow of said Oscar A. Amy, deceased, and as such widow she is the successor to the whole of his estate, consisting of the property hereinabove described."

court directing the publication of the summons in the divorce proceeding, and that the court erred in holding that the only papers necessary in proof of publication were the complaint, summons, and affidavit of the printer and judgment. But there are no We will consider the assignments in their findings which raise these questions. On the logical order. The first to the eleventh, in- contrary, the facts found are that the sumclusive, and the nineteenth complain of er- mons were duly published, and that the derors which it is alleged the supreme court | fendant had besides personal notice. To 171 U. S. U. S., Book 43



field in Holman v. Johnson, 1 Cowp. 341, decided in 1775, that "the objection that a contract is immoral or illegal as between the plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is [151]not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act."

or paid for. The former is impossible. The property has substantially disappeared. It has become incorporated with the business and property of the plaintiff, and cannot be separated. Compensation must therefore be made. What, then, is the measure of compensation? Clearly, we think, the value of the property when received, together with its earnings since, less the amount paid as rent. In ascertaining the value the annual rental may be considered, but it does not afford a conclusive nor an entirely safe measure of value because the unlawful consideration (that the Central Company would abstain from exercising its franchises) entered into it. The cases upholding this doctrine are nu- For the same reason the earnings cannot be merous and emphatic. Indeed, there is really measured by the rent. The value of the no dispute concerning it, but the matter of property and earnings must be ascertained controversy in this case is as to the extent from a careful examination of the property, to which the doctrine should be applied to the business. and its earnings at the time the facts herein. Many of the cases are re: they passed into plaintiff's hands and subseferred to and commented upon in the opin-quently. It is not their value to the plainion delivered in the case in 139 U. S. 24 tiff we want, but to the defendant; in effect, [35: 55], already cited. The right to a recovery what is lost by parting with them. The of the property transferred under an illegal value of both property and earnings may contract is founded upon the implied promise have been worth more to the plaintiff with to return or make compensation for it. For the business united, but this cannot be conillustrations of the general doctrine as applied sidered." to particular facts we refer in the margin to a few of the multitude of cases upon the subject.†

They are substantially unanimous in expressing the view that in no way and in no channels, directly or indirectly, will the courts allow an action to be maintained for the recovery of property delivered under an illegal contract where, in order to maintain such recovery, it is necessary to have recourse to that contract. The right of recovery must rest upon a disaffirmance of the contract, and it is permitted only because of the desire of courts to do justice as far as possible to the party who has made payment or delivered property under a void agreement, and which in justice he ought to recover. But courts [152]will not in such endeavor permit any recovery which will weaken the rule founded upon the principles of public policy already noticed. We may now examine the record herein and learn the grounds for the recovery which has been permitted, and determine therefrom whether the judgment in favor of the Central Company should be in all things affirmed or if not, then how far the liability of the cross defendant extends, and, if possible. what should be the amount of the judgment against it.

In referring the case to the master for the purpose of taking the account between the parties the learned district judge stated the principle upon which the liability of the cross defendant rested. He said:

"The property must therefore be returned ¡Coppell v. Hall, 7 Wall. 542 [19:244]; Con- | gress & E. Spring Company v. Knowlton, 103 U. S. 49 [26:347]; Logan County Nat. Bank v. Townsend, 139 U. S. 67 [35:107]; St. Louis, V. &T. H. Railroad Company v. Terre Haute & 1. Railroad Company, 145 U. S. 393, at 408, 409 [36:748, 754, 755]; Manchester & L. Railroad Company v. Concord Railroad Corp. 66 N. H. 100 (9 L. R. A. 689, 3 Inters. Com. Rep. 319]; White v. Franklin Bank, 22 Pick. 181: Utica

Acting under these directions of the court, the master in his opinion said:

"Passing to the consideration of the main question raised in the present reference, viz., what the Central Transportation Company lost by the transfer of its property to the Pullman *Company, the measure of damages[153] as determined by the court requires the master to ascertain:

"(1) What was the value to the Central Transportation Company in 1870 of the property transferred?

"(2) What was earned by the Pullman Company between January 1, 1870, and January 1, 1885, from the use of the property transferred?

"(3) The difference between the amount so received by the Pullman Company and the rental paid by it to the Central Transporiation Company for the above period.

"(4) The total amount to be paid by the Pullman Company, as of January 1, 1885, deduced as above, together with interest thereon from January 1, 1885, to date of final decree.".

The master proceeded to determine the value in 1870 of the property then transferred. In ascertaining it he said:

"The value of the stock on the street is a positive indication of the estimate placed on the property by the public. That it is not entirely a satisfactory measure of value must be conceded, but in the judgment of the master, supported as it is by the best independent estimate that the evidence affordis, Insurance Company v. Caldwell, 3 Wend. 296; Atcheson v. Mallon, 43 N. Y. 147 [3 Am. Rep. 678]; Leonard v. Poole, 114 N. Y. 371 [4 L. R. A. 728]; Snell v. Dwight, 120 Mass. : Davis v. Old Colony Railroad Co. 131 Mass. 258 [41 Am. Rep. 221]; Holt v. Green. 73 Pa. 198 [13 Am. Rep. 7371; Johnson v. Hulings, 103 Pa. 498 [49 Am. Rep. 131]; Thomson v. Thomson, 7 Ves. Jr. 470; Sykes v. Beadon, L. R. 11 Ch. Div. 170; Brooks v. Martin, 2 Wall. 70 [17:732).

it should be accepted as the fairest criterion | man Company, nor were the shares of the of value."

He accordingly reported the value of the property when received as $58 a share (the par value being $50 per share or a total par value of $2,200,000) making the total market value of the shares $2.552,000, which sum he reported as the value of the property trans


When the report came before the court, exceptions having been taken, among other things, to the findings of the value of the property when delivered, the court said:

capital stock of the Central Company, all of which remained in the hands of its original owners. The probable prospective capacity for earnings also enters largely into mar-[155] ket value, and future possible earnings again depend to a great extent upon the skill with which the affairs of the company may be managed. These considerations, while they may enhance the value of the shares in the market, yet do not in fact increase the value of the actual property itself. They are matters of opinion upon which persons selling "It is the value of the property at the time and buying the stock may have different it should have been returned that the Pull-views. A liability to return or make comman Company should be charged with. In-pensation for property received cannot be asmuch as this value would be difficult of properly extended so as to include other conascertainment by the transportation com-siderations than those of the actual value pany except by reference to the value in of that property. 1870, it was considered proper to direct the In this particular case a consideration eninquiry to the latter date. Presumably the tering into the market value of the shares value increased; the evidence fully justifies must have been the probability or possibility the presumption. If it decreased, the Pull-of renewals of the contracts owned by the man Company could and should have shown [154]it. The master's *valuation in 1870 is therefore to be taken as the value in 1885, when the property should have been returned. The payment of this sum, with interest from January 1, 1885, seems necessary to a just settlement, treating the value of the use and the rents paid prior to that date as balancing each other. A decree may be prepared accordingly, dismissing the exceptions and confirming the report."

company for the use of its cars upon the railroads of the companies with which it had such contracts and the possibility of extending its business in the future under contracts with other railroads. These considerations, while they affect more or less the value in the market of the shares of a corporation, do not constitute the value of the property which a party impliedly promises to pay for upon the agreement being determined void under which the property was received. The faith which a purchaser of stock in such a company has in the ability with which the company will be managed, and in the capaci ty of the company to make future earnings, may be well or ill-founded. It is but mat We are of opinion that the court erred in ter of opinion which in itself is not property. the manner of ascertaining the value of the While the value of the property is one of the property transferred by the Central Com-material factors going to make up the marpany. The market value of its stock was not a proper measure of the value of the property, and such error resulted in largely increasing the supposed value of the property which the cross defendant was under liability

Judgment based upon the value of the property at $2,552,000 on the 1st of January, 1885, with interest from that time, was therefore entered, and it amounted, as stated, to the sum of $4,235,044.

to account for.

ket value of the stock, yet it is plainly not
the sole one. Mere speculation has not un-
commonly been known to exercise a potent
influence on the market price of stock. The
capacity to make any future earnings in
this case by the lessee arose out of the trans-
fer of the property to it and grew out of the
lease itself, and that capacity would there-
fore be partly founded upon the illegal con-
tract and could not otherwise exist.

The capital stock of this corporation had been increased from an original amount of $200,000 in 1862 to $2,200,000 in 1870. During this time it had been doing an increasing and a profitable business, and it was sup- As the market value of the shares of this posed that such business might increase in stock was made up to some extent, at least, the future. The market price of the shares of certain factors which the lessee cannot, of stock in a manufacturing corporation in-under the rules of law, be held responsible for cludes more than the mere value of the property owned by it, and whatever is included in that price beyond and outside of the value of its property is a factor which in a case like this cannot be taken into consideration in determining the liability of the cross defendant. Whatever that something may be it is not that kind of property which We must therefore take the property that was delivered or that can be returned or actually was transferred and determine its compensation made in lieu of its return. It value in some other way than by this resort is not property at all within the meaning of to the market price of the stock. The propthe word as understood in such a case as this. erty transferred consisted (a) of cars, bedThe value of the franchise for one thing en-ding, etc.; (b) contracts which the Central ters into the computation of market value. Company owned with railroad companies for This was, of course, not assigned to the Pull-the use of its cars on their roads; (c) patents

in this case, it follows that such value cannot
furnish a safe guide in measuring the respon-[156]
sibility of the lessee in an utterly void lease.
The court therefore erred in taking the mar-
ket value of the shares of this stock as a
proper or just measure of the value of the
property transferred.

covering the construction and use of sleeping | rental that was paid by the lessee included
cars owned by the Centra. Company and by compensation for use, and to that extent the
it transferred under the lease to the Pullman transaction was closed and the compensation
Company; and (d) $17,000 in cash. It seems paid up to the time when the contracts them-
to us these values must be taken separately, selves had expired, which was prior to the
because, for reasons hereafter suggested, the time when the lease was declared void and
value of the contracts and patents does not payment of rent ceased. There is no principle
enter into the problem.
with which we are familiar that will permit
the value of those contracts when assigned to
the Pullman Company to enter into and form
a part of the value of the property for which
the company is to make compensation, when
from the nature of the thing itself, its value
necessarily, and from the simple passage of
time, decreased daily, and upon the arrival
of the date named for the expiration of the
contract it ceased to have any value.

As to the value of the cars. We agree with
the court below that it is now impossible to
decree their return, for the reasons stated.
They have substantially disappeared. The
property has become incorporated with the
business and property of the Pullman Com-
pany. Compensation therefore must be made.
The master found that the value of the cars
as vehicles, together with their equipment, at
the time of the transfer, was $710,846.50.
This is probably a pretty high figure judging
from the whole evidence in the case upon that
subject, yet still we are inclined to think that
the master was justified in arriving at
that sum. We take this value for the reason
that the Pullman Company agreed in the lease
to keep the cars in good order and repair, and
renewed and reconstructed as often as might
be needful during the whole term of the lease.
During the fifteen years elapsing from 1870
up to January, 1885, no violation of the
terms of the lease by either party is com-
plained of, and we think the whole transac-
tion between the parties during those fifteen
years must be treated as closed, so that no
examination should be made in regard to any-
thing that happened within that time. We
must assume the provisions of the lease were
fully carried out by both parties, particularly
as no complaints were made of nonperform
[157]ance. *We therefore assume the cars were
kept in good order, and when necessary were
reconstructed and renewed up to January,
1885. The value at that time may be taken
to be as great as the master found it to be for
1870. It is very probable the assumption is
not in accordance with the fact, and that
the property had greatly depreciated. But as
we refuse to look into the transactions be-
tween the parties during that period, we will
hold the value in 1885 to have been the same
as in 1870, on the presumption that the Pull-
man Company fulfilled its obligations be-
tween those dates. What rule of compensa-
tion should be deduced from such finding will
be alluded to hereafter.

We next come to consider the various contracts. They were entered into with different railroad companies for certain definite periods, and their time of expiration was stated in the contracts themselves. They were valuable only as they were used by the lessee, and its right to use them sprang from and was determined by the lease itself. They were assigned to the lessee for the purpose of enabling it to avail itself of the rights therein created and to use the cars with the consent of the railroads to which the contracts applied. Whether any use was made of these contracts or not they became daily less valuable as they daily neared their termination. The use made of them did not impair their value. The passage of time did that. The

We think the contracts were not extended by the legislative *extension of the charter of[158] the Central Company by the act of 1870. Some of these contracts were to last during the corporate life of the Central Company. At the time they were made the charter of the company would expire in twenty years from December 30, 1862, or on December 30, 1882. We do not think the contracts meant that they were to cover any further time to which the legislature might thereafter extend the charter of the company. Some language to that effect would have been contained in the contracts if such had been the meaning of the parties. All the contracts had therefore expired by the end of 1882.

Now upon what principle can it be urged that the lessee should compensate the lessor for the value of these contracts when delivered to it when it had paid for the use, and the property was of such a nature that it became valueless by mere limitation of time? In 1885 they had gone out of existence, and, of course, had no value. The basis for a recovery of property or compensation for its value, in cases of illegal agreements, rests upon the implied contract to return it or pay for it, because there is no right in the party in possession to retain it. If at the time when otherwise it would or ought to be returned it has ceased to exist by virtue of the termination of its legal existence, how can it be returned? How can a promise to return or make compensation therefor be implied in the case of a contract having but a limited time to run, and the value of which diminishes daily until the contract itself and its value are wholly extinguished by expiration of time, and where the use of this intangible right during its existence was fully paid for by the party to whom it was assigned? There is no implication of a promise to make any further compensation for such a species of property than is made by paying for its use while it remained in legal existence. When that time expired the value was gone, and while it lived it had been paid for.

We have been able to find no case where any principle was laid down which would authorize or justify a recovery of the value of property at the time of delivery, which, before its return became proper, had passed out of existence by limitation of *time, and the[159) use of which was paid for during its lifetime.

sel,and that such expenses constituted a claim for general average, notwithstanding the abandonment of the ship was not attributed to a peril of the sea, but to the fault of the master and crew. The decree was affirmed. The case of Crowley v. Saint Freres, 10 Revue Internationale du Droit Maritime, 147 also came before the French court of cassation in 1894. In this case, an English ship, the Alexander Lawrence, on voyage from Calcutta to Boulogne, with a cargo of jute, took fire through the carelessness of a sailor. The ship put into Port Louis, an intermediate port, with the cargo still burning, and ex-be had against her. But where the faults of tinguished it, subsequently arriving at her port of destination. By a clause in the charter party the ship was exonerated from responsibility for negligence. It was held that the expenses of putting into the port of refuge should be classed as general average, and not as particular average, as it had been held by the court below. The decree of that court (of Douai) was therefore reversed.

curred through negligence, but where by the bills of lading the owners of the ship were not responsible for that negligence."

These are all the cases I have been able to find directly upon the question under consideration, but there is a class of analogous cases which, I think, have a strong bearing in the same direction. It is well known that by the law of England a ship is not responsible to another for a collision brought about by the negligence of a compulsory pilot. Of course where such ship is solely to blame the rule is easy of application. No recovery can

the two vessels are mutual, a different question arises; and in the case of The Hector, L R. 8 Prob. Div. 218, it was held that, where a collision occurred by the mutual fault of two vessels, and one of such vessels had on board a compulsory pilot, whose fault contributed to the accident, the owner of that vessel was entitled to recover a moiety of the damages sustained by her without any deduction on A case arising from the same disaster to account of the damage sustained by the the Alexander Lawrence, between the owners other; in other words, she was not responand the underwriters (11 Revue Inter-sible for any portion of the damage done to nationale, 41), subsequently came before the the other vessel, but might recover the half court of appeals of Orleans, on appeal from of her damages from such other vessel. Said the tribunal of commerce of Boulogne, where the master of the rolls, in delivering the opina similar ruling was made, and the expensesion: of putting into port classed as general average under the stipulation in the charter party, although in the absence of such stipulation they would have been chargeable to the ship.

*"With regard to the Augustus, she was[202] found to blame for the collision, therefore she is, in the first instance, liable to pay all the damage which the Hector has suffered. With regard to the Hector, it is found that her The same question came before the tri- owners are not to blame, but that her navibunal of commerce of Antwerp, Belgium, in gation was to blame; but that was the fault the case of The Steamer Alacrity, 11 Revue of the pilot. The owners are not liable for Internationale, 123, where the cargo was held this default, therefore they are not liable for to contribute to the expenses of putting into anything to the owners of the Augustus. a port of refuge, in consequence of a colli- What is the result? That the liability of the sion due to the fault of the captain, the ship-owners of the Augustus is declared to have owner being exonerated by his contract from the consequences of this fault. In this case the parties had stipulated that general average expenses should be payable under the York-Antwerp rules, and that the ship should not be responsible for the faults of [201]the captain or crew. It was held that, by the Belgium law, parties might contract with reference to these rules, which declared the expenses of putting into a port of refuge general average; that there was no difference between such expenses when occasioned by an inevitable accident or in consequence of the It seems to me that the cases above cited fault of the captain; that the parties having show an almost uniform trend of opinion stipulated that the ship should be exonerated against the principle laid down by the court from the consequences of such fault, the own-in this case. I do not contend that the deers of the cargo were bound for their contrib-cisions of the English, French, and Belgian utory shares.

From the case of The Mary Thomas [1894] P. 108, it would seem that the Dutch law is different; but it was said by Mr.Justice Barnes in this case (p. 116) that if the question had arisen in this country (England) "the point could hardly have occurred, as it has done, because it has already been decided by Lord Hannen, in the case of The Carron Park, that the cargo owners would be liable for the contribution in general average under circumstances where the accident had oc

been proved, but the liability of the owners of the Hector is disproved, and they are dismissed from the suit. Therefore no balance is to be calculated; the owners of the Hector are not liable for a single pennyworth of the damage done to the Augustus. The owners of the Augustus must go against the pilot and get what they can out of him; but the Hector is entitled to succeed."

See also Dudman v. Dublin Port and Docks Board, Ir. Pep. 7 C. L. 518; Spaight v. Tedcastle, L. R. 6 App. Cas. 217.

courts should be recognized by us any further than their course of reasoning commends itself to our sense of justice; but upon questions of maritime law, which is but a branch of international law, I think the opinions of the learned and experienced judges of these courts are entitled to something more than respectful consideration. It is for the interest of merchants and shipowners, whose relations and dealings are international in their character, that the same construction should, so far as possible, be placed upon the

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