« ForrigeFortsett »
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 themto 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.
We think the contracts were not extended
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 Company. 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|by the legislative *extension of the charter of from the whole evidence in the case upon that the Central Company by the act of 1870. subject, yet still we are inclined to think that Some of these contracts were to last during the master was justified in arriving at the corporate life of the Central Company. that sum. We take this value for the reason At the time they were made the charter of the that the Pullman Company agreed in the lease company would expire in twenty years from to keep the cars in good order and repair, and December 30, 1862, or on December 30, 1882. renewed and reconstructed as often as might We do not think the contracts meant that be needful during the whole term of the lease. they were to cover any further time to which During the fifteen years elapsing from 1870 the legislature might thereafter extend the up to January, 1885, no violation. of the charter of the company. Some language to terms of the lease by either party is com- that effect would have been contained in the plained of, and we think the whole transac- contracts if such had been the meaning of the tion between the parties during those fifteen parties. All the contracts had therefore exyears must be treated as closed, so that no pired by the end of 1882. examination should be made in regard to anything 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 nonperformance. 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 between 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 Pullman Company fulfilled its obligations between those dates. What rule of compensation should be deduced from such finding will be alluded to hereafter.
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 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 We have been able to find no case where of the railroads to which the contracts ap- any principle was laid down which would auplied. Whether any use was made of these thorize or justify a recovery of the value of contracts or not they became daily less valu- property at the time of delivery, which, beable as they daily neared their termination. fore its return became proper, had passed out The use made of them did not impair their of existence by limitation of time, and the[159) value. The passage of time did that. The use of which was paid for during its lifetime.
sel,and that such expenses constituted a claim
curred through negligence, but where by the
These are all the cases I have been able to
the two vessels are mutual, a different ques-
the other vessel, but might recover the half
*"With regard to the Augustus, she was 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 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  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
law maritime by the courts of all maritime | pensation up to March 31, 1383, case No. nations, and I am compelled to say that I see 13733, in the court of claims, and has never no reason for creating an exception in this sued any oflicer nor brought any other suit than that before this present petition.
"Your petitioner prays for an account of the full and entire number of the said cart
WILLIAM WHEELER HUBBELL, Appt., ridges made or used by the defendant, its
(See S. C. Reporter's ed. 203-210.)
officers or employees in its service, or for distribution to the states, since the said March 31, 1883, to be separately stated when ordered, and for leave to make the same a part of this petition when precisely ascertained
Dismissal upon the merits-estoppel in sub- by amendment.
1. When a case is dismissed upon an opinion
"Your petitioner further claims a just com-
the successful party, in a subsequent action
Argued April 13, 14, 1898. Decided May 31,
APPEAL from a judgment of the Court of Claims dismissing the petition of William Wheeler Hubbell for judgment against the United States for compensation for making and using by the defendant and its officers and employees, of plaintiff's patented invention for an improvement in cartridges. Affirmed.
See same case below, 20 Ct. Cl. 354.
Statement by Mr. Justice Brown:
from the said 31st March, 1883, to said 31st May, 1888, by the defendant, its authorized officers or employees in its service, or on its behalf, in pursuance of law, in the sum of one hundred and ten thousand dollars, with leave to amend his petition in this behalf when the precise numbers have been duly reported by the proper departments of the United States."
Upon the trial of this case the court of claims made, amongst others, the following finding:
"The facts in this case are the facts already found in case No. 13793, between the same parties as to the same subject-matter, except as to the time since the beginning of the other action, during which time, to wit, from the beginning of the other action to the beginning of this action, the government manufactured cartridges of the same form and kind as those described in these findings, known as the 'reloading' cartridge, in which said case No. 13793 the following proceedings were had and the following facts were found, which facts are now found herein and are hereto annexed, as follows, to and including finding 8.” The 9th finding is as follows:
"The following are, in substance, the proceedings had in case No. 13793 between the same parties:
"April 19, 1883.
Amendment to petition
Ine petition contained, amongst others,
NOTE. As to consequence of a nonsuit or!
As to what constitutes infringement of pat ent; similarity of devices; designs; combina tions; machincs; construction of patent,-see note to Royer v. Coupe, 36: 1073.
"October 2, 1884.
"January 10, 1885.
Amendment to petition
Amendment to peti
As to damages for infringement of patent; treble damages,-see note to Hogg v. Emerson, 13: 824.
As to what questions are concluded by rea judicata,-see note to Wiese v. San Francisco Musical Fund Soc. (Cal.) 7 L. R. A. 577.
See same case below, 9 App. D. C. 360.
against the District of Columbia, in the Su- three fourths of the work to be done under preme Court of that District upon an award this contract had been completed and about for a breach of contract for resurfacing with $36,000 earned therefor, including $5,784.14 asphaltum certain streets in the city of allowed for extra work, the commissioners Washington, and in favor of the defendant in notified Bailey that no more work could be another action. Reversed, and cases remand-performed under the contract, because of the ed with directions to dismiss one action and fact that the appropriation made by Conto grant a new trial in the other. gress for the work in question was exhausted. Subsequently on February 24, 1883, Davis W. Bailey, claiming that he was in fact the Statement by Mr. Justice White' Bailey-French Paving Company, instituted an On July 30, 1879, a contract for resurfac- action at law in the supreme court of the ing with asphaltum certain streets in the city District of Columbia against the District of of Washington was awarded to the *Bailey- Columbia to recover $25,000 as damages, French Paving Company. The agreement averred to have been sustained by the cessawas embodied in a writing signed on the one tion of the work under the contract. The part by Davis W. Bailey as general agent of District, on April 4, 1883, filed pleas, claimthe company just named, and on the other ing a set-off of $1,312.30 for damages alleged part signed and sealed by the commissioners to have been sustained by improper performof the District of Columbia. The price speci-ance of the work of resurfacing; averring fied for the work aggregated a little less than the termination of the contract by reason of $41,000. On February 12, 1880, when about the appropriation having been exhausted;
Arbitrators, unless restricted by the agreement to submit, are not, as to matters of law, bound in all cases to follow the strict rules of law governing the courts, but may decide in accordance with their views of the equitable rights of the parties. School Dist. No. 5 v. Sage, 13 Wash. 352.
An award by arbitrators will not be set aside upon a doubtful point of law or upon a complaint of error which is not plain, even where the arbitrators are required to decide according to the strict rules of law. School Dist. No. 5 v. Sage, 13 Wash. 352.
An award by arbitrators under the Washing ton statutes, if fairly and honestly made upon due consideration of all the evidence before them, is conclusive and binding upon the parties. School Dist. No. 5 v. Sage, 13 Wash. 352. The conclusions of arbitrators on facts sub-parties to designated arbitrators, written down mitted to them, which are such as may be de- by a justice in his docket, is a common-law subtermined differently by fair minded and honest mission to arbitration. Climenson v. Climenpeople, are final, and not subject to review. son, 163 Pa. 451. Witz v. Tregallas, 82 Md. 351.
A suit cannot be maintained upon an original cause of action which has been submitted to arbitrators. where the plaintiff retains the fruits of the award. Orvis v. Wells, F. & Co. 38 U. S. App. 471, 73 Fed. Rep. 110, 19 C. C. A. 382.
Costs and expenses incurred in preparing for an arbitration, under an agreement that the compensation of the arbitrators and their expenses and those of the witnesses shall be borne and paid by the parties in a designated propor tion, may be recovered in full from a party who revokes the agreement, under N. Y. Code Civ. Proc. § 2384. Union Ins. Co. v. Central Trust Co. 24 N. Y. Civ. Proc. Rep. 219, Affirmed in 87 Hun, 140.
A provision in a submission of a controversy to arbitrators, that the arbitrators shall proceed on the principles of equity, it being the desire that the matters in dispute shall be equitably settled so that each shall have from the other all that is his equitable due,-means equity in the sense of "fair dealing" and "justice." Re Curtis, 64 Conn. 501.
An agreement by a client and his attorney to submit the amount of the latter's compensation to the determination of a person upon a sworn itemized and explanatory statement of the services rendered and expenses incurred and of the moneys received, the arbitrator to allow only such sum as he believes proper and necessary for preparing the defense in the suit in which such services were rendered, constitus in effect a common-law arbitration, which is still recognized and enforced by the courts of New York. Box v. Costello, 6 Misc. 415.
The award of arbitrators to whom a case is submitted by mutual consent of the parties is conclusive upon them, although the agreement of submission is by parol and the parties do not assent to the award after it is made. Wentz v. Bealor, 14 Pa. Co. Ct. 337.
The power of awarding the costs of arbitration is necessarily incident to the authority conferred on the arbitrators of determining the case, although such costs are not provided for in the terms of submission. Stewart v. Grier, 7 Houst. (Del.) 378.
The fact that one has been previously in the employ of one of the parties to an arbitration does not disqualify him from acting as clerk for the arbitrators. Wilson v. Wilson, 18 Colo. 615.
'n agreement of arbitration forced by a threat of prosecution for perjury is void. La ferriere v. Cadieux, 11 Manitoba L. R. 175.
Failure to insert the names of the arbitrators In a written submission to arbitrate does not Invalidate such submission. Reeves v. McGlochlin, 65 Mo. App. 537.
An award made in pursuance of a submission under Ala. Code, § 3222, of partnership trans actions carried on in two states by partners who reside in two different states, is not vitiated as an Alabama award by the fact that the sitting of the arbitrators occurred in a store, the property of the parties across the state line. Edmundson v. Wilson, 108 Ala. 118.
A submission to arbitration requiring the arbitrators to make a written award and deliver a copy thereof to the parties is not complied with by one of the arbitrators notifying a party on meeting him on the street that the arbitrators had come to a decision, with a statement to what their finding was. Anderson v. Miller, 108 Ala. 171.
on the face of the record. Reeves v. McGlochlin, 65 Mo. App. 537.
The decisions of arbitrators, under Ala. Code, 3222. are to be liberally construed, and every reasonable intendment is made to support them. Edmundson v. Wilson, 108 Ala. 118.
A motion to vacate or modify an award is properly denied when filed during the second term after publication of the award, under the Missouri statute requiring such an application to be made at the next term after such publication. Reeves v. McGlochlin, 65 Mo. App. 537. An award of arbitrators will not be vacated or modified under Mo. Rev. Stat. 1889, §§ 405, 406. for alleged mistakes which do not appear
That an agreement for arbitration does not comply with the mode prescribed by the Texas Revised Statutes does not invalidate it, in view of the provision that nothing therein shall be construed as affecting the right of parties to a bitrate their differences in such other mode as they may seiect. Salinas v. Stillman, 30 U. S. App. 40, 66 Fed. Rep. 677, 14 C. C. A. 50.
An agreement without action pending, to submit all matters in variance between the
The necessity for filing an award of arbitrators with the clerk as required by the Colorado
missed upon an opinion filed and certain findings of fact, it will be presumed to have been dismissed upon the merits (Loudenback v. Collins, 4 Ohio St. 251); and that such dismissal covered every question put in issue by the pleadings, including the validity of the patent and its use by the defendants.
But if there were any doubt with regard to this point, it would be resolved by an inspection of the opinion of the court (which may be examined for the purposes of identification), as it is published in 20 Court of Claims, 354, wherein it not only appears that the case was considered and disposed of upon the merits, but the court concludes its opinion (p. 370) in the following language:
"Upon our construction of the patent in issue the government cartridges do not in fringe the claimant's; but if we are in error as to this, still the claimant cannot recover, as the essential characteristics of his inven tion now found in the government cartridge were developed by officers of the army in 1864. That is, if the relative position of the vents and the wall of the fulminate chamber is a material part of the claimant's patent, the government has not infringed, this feat ure not appearing in its cartridges; but if this position is not material, still the claimant cannot recover, as the other characteristics of his invention, found in the cartridge now used by the defendants, were introduced by them prior to the use of the patent or the filing of the application for it, and even prior to the application of 1865."
to base claimant's argument that the issues were not the same. The findings show that the manufacture of the reloading cartridge with the grooved anvil disk, referred to in finding 6, commenced at the Frankfort Arsenal in the month of July, 1879, and that from February, 1879, to March 31, 1883, being the period covered by the first suit, the United States manufactured 3,866,352 reloading cartridges. We see nothing to indicate that these reloading cartridges were manufactured experimentally, or that the issue as to these cartridges was not presented and decided in the former case. The claim in the present suit is also for reloading cartridges.
But, even if a somewhat different theory or state of facts were developed upon the trial of the second case, the former judgment would not operate the less as an estoppel, since the patentee cannot bring suit against an infringer upon a certain state of facts, and after a dismissal of his action, bring another suit against the same party upon the same state of facts, and recover upon a different theory. The judgment in the first action is a complete estoppel in favor of the successful party in the subsequent action upon the same state of facts. Walker, Patents, § 468; Dubois v. Philadelphia, W. & B. Railroad Co. 5 Fish. Pat. Cas. 208; David Bradley Mfg. Co. v. Eagle Mfg. Co. 18 U. S. App. 349, 57 Fed. Rep. 989, 6 C. C. A. 661.
2. It only remains to consider, then, whether any proceedings taken in the court of claims since the dismissal of such petition deprived its judgment of its character as an estoppel. A motion for a new trial was made
ruled in the following December, clearly this
3. It further appears that on August 21, 1885, an application for an appeal was filed by the claimant, but as this appeal was never allowed or perfected, and as it does not appear that a transcript of the record was ever filed in this court, it is obvious that the authorities which hold that an appeal perfected to a superior court vacates the judgment of the court below have no application to this
Whether the reasons given by the court of claims for the dismissal of this petition are correct or not; whether, indeed, this judg-August 14, 1885, but as this motion was overment were right or wrong upon the tacts presented, is of no importance here. If such judgment were based upon an erroneous view of the claimant s patent, it was his duty to have promptly taken an appeal to this court, where the whole case would have been reopened and the error of the court of claims. if such there was, would have been rectified. It is insisted by the claimant that in the former action the main contention arose upon the manufacture and use of what was known as the "cup-anvil cartridge," together with a certain reloading cartridge, which had been experimentally manufactured, and that no claims for the "cup-anvil cartridge" or for the reloading cartridge in that suit are in issue in the case at bar. The suit, how ever, was upon the same patent, and it was found by the court of claims to have been upon the same facts, and we think the estopWe are therefore of the opinion that the pel operates upon everything which was, if defense of res judicata is sustained, and the not upon everything which might have been judgment of the Court of Claims dismissing put in issue in the former case. The pre-the petition is accordingly affirmed. sumption is that the issues were the same. and if they were in fact different, it was incumbent upon the claimant to show that the prior case was decided upon questions not in volved herein. We have before us only a decision upon the merits, and upon the same state of facts, of a claim identical with this, and we perceive no reason why it should not operate as an estoppel.
But there seems to be nothing upon which |
171 U. &