District of Columbia. An action of
indebitatus
assumpsit was instituted to recover a large sum of money,
alleged to be due for the construction of certain locks, &c.,
on the Chesapeake & Ohio Canal. The defendants pleaded the
general issue, and called on the plaintiffs for a bill of
particulars. The item of claim upon which the jury gave a verdict
for the plaintiffs, was stated in the bill of particulars to be,
"detention and damage sustained for want of cement on locks No. 5
and 6."
There is no doubt that a bill of particulars should be so
specific as to inform the defendant, substantially, on what the
plaintiff's action is founded. This is the object of the bill, and
if it fall short of this, its tendency must be to mislead the
defendant, rather than to enlighten him.
As the bill of particulars is filed before the trial, it is
always in the power of the defendant to object to its want of
precision, and the court will require it to be amended before the
commencement of the trial, and if this be not the only mode of
taking advantage of any defect in the bill, it is certainly the
most convenient for the parties.
Although this bill of particulars does not specify technically
and fully the grounds on which the plaintiffs claim damages, it
sufficiently expresses to the defendants that the claim arises for
want of cement on locks No. 5 and 6.
The ancient doctrine that a corporation can act in matters of
contract only under its seal has been departed from by modern
decisions, and it is now considered that the agents of a
corporation may, in many cases, bind it and subject it to an action
of assumpsit. There can be no doubt that when a special contract
remains open, the plaintiff's remedy, is on the contract, and he
must set it forth specially in his declaration. But if the contract
has been put an end to, the action for money had and received lies
to recover any payment that has been made under it.
It is a well settled principle that where a special contract has
been performed, a plaintiff may recover on the general counts.
The court ought not to instruct, and indeed cannot instruct, on
the sufficiency of evidence, but no instruction to the jury should
be given except upon evidence in the case. Where there is evidence
on a point, the court may be called upon to instruct the jury on
the law, but it is for them to determine on the effect of
evidence.
This was an action of assumpsit, instituted originally in the
County Court of Montgomery County in the State of Maryland, and by
agreement of the parties transferred, with all the pleadings,
depositions and other proceedings therein, to the Circuit
Page 34 U. S. 542
Court of the United States for the County of Washington in the
District of Columbia.
The declaration contained nine counts: the first, second, and
third for goods sold and delivered; the fourth, fifth, eighth, and
ninth for work, labor and services and for materials furnished,
&c.; the sixth, for money paid, laid out and expended, and for
money had and received for the use of the plaintiffs, and the
seventh an
insimul computassent. The defendants pleaded
nonassumpsit, and issue was joined thereon. A rule having
been entered on the plaintiffs to file a bill of particulars, the
same was duly filed, setting forth all the items of claim against
the defendants.
The plaintiffs, in the circuit court, had on 4 May, 1829,
entered into articles of agreement with the Chesapeake & Ohio
Canal Company to execute certain sections of the canal, then being
made by the company, according to certain specifications before
agreed upon by the parties. Under this agreement, the plaintiffs
constructed eight locks on the canal, and this action was brought
for the value of the work done and materials expended on the same,
and for other matters which had arisen under the agreement.
The only item in the bill of particulars which was deemed
material, and which came under examination and discussion by the
counsel and the Court in the argument and decision of the cause,
was the following:
"To detention for want of cement at proper times at locks No. 8,
15, 16, 17, 18 and 20; damages sustained in consequence of such
detention $600."
The defendants in error read in evidence the specification for
Lock No. 6, and their offer to contract for the construction of the
said lock on the terms therein stated, and also a paper containing
their proposal to execute the said lock according to the plan and
the specification, and they proved that the proposals were
accepted. They also read the agreement between them and the Canal
Company, dated 4 May, 1828, for the construction of the work
pursuant thereto, and also like specifications and proposals, and
their acceptance by the parties, for the execution of the other
eight locks, and the contract for the same; the execution of the
work to be done by them under the said contract, being also proved.
The specifications particularly described the work to be done, the
materials
Page 34 U. S. 543
to be used, and the manner and time of its execution. In the
specifications there was inserted the following:
"It is believed that hydraulic cement, suitable for the
construction of lock masonry, may be obtained on the Potomac as far
east as Shepherdstown."
"Its average cost, it is presumed, will not exceed 40 cents the
bushel, delivered at the shore opposite the locks; should it be
found not suitable for the purpose and it become necessary to
import the New York hydraulic cement or Parker's Roman cement, the
president and directors will furnish to the contractor cement so
imported in good season, say by 1 May, 1829, at the price of 40
cents the bushel, which shall be deducted from the sum to be paid
for the lock if the contractor furnished the cement himself. The
extent of its use, if it be so supplied, may be limited by the
engineer to a certain distance from the face of the wall."
The proposals stated the prices at which the work was to be
done, and the agreement set forth stipulations for the performance
of the work, and the sums to be paid for the same, with other
matters to secure and define the obligations of the parties
thereto.
The plaintiffs also offered and read in evidence the following
resolution of the President and Directors of the Canal Company,
passed 2 September, 1829.
"Ordered that the board will furnish water lime to such
contractors for masonry as shall provide houses to receive it, to
be delivered at the river shore opposite to their works at 40 cents
per bushel."
And also the following resolution of the said president and
directors, passed 20 January, 1830.
"Resolved that although this board has stipulated to supply the
contractors with water lime, yet the board will not be held
responsible for any damage arising from the want of that
article."
And also the answer of Theophilus Williams to an interrogatory
on the part of the plaintiffs.
"To the thirty-second annexed interrogatory, this deponent
replies that the plaintiffs were very greatly hindered in their
operations by the want of cement. This deponent has no written
memoranda of the time which the plaintiffs were so hindered, but
believes that the time lost by the failure of the
Page 34 U. S. 544
defendants to furnish cement, was not less than one-third of the
whole time from the 1 April to 1 August, 1830, and this deponent
can further state that the opinion of the late resident engineer,
Daniel Van Slyke, Esq., agreed with that of this deponent above
stated, as to the proportion of the time lost by the plaintiffs for
want of cement. Orders were given to the plaintiffs not to
discharge their men when idle for want of cement, but to retain
them all under pay until a supply could be procured. This order had
not reference to any one particular time when the plaintiffs were
hindered for want of cement. The deponent was directed by the
resident engineer to communicate the order to the plaintiffs, and
did accordingly communicate it to them. This was the usual course
of transmitting orders to the contractors for the different works
on the Chesapeake & Ohio Canal. This deponent received the same
order at several different times from the president of the company.
It was reiterated to the plaintiffs at various times, and was, as
this deponent believes, strictly complied with by them. This order,
as well as that referred to in the answer to the twentieth, was,
according to this deponent's recollection, verbally given. This
deponent cannot state with accuracy, to what extent the plaintiffs
were delayed for want of cement previous to 1 April, but thinks
there was some considerable for want of cement before that time.
From what this deponent recollects of the number of men and teams
employed by the plaintiffs, and the high wages paid to laborers
generally, and more particularly to mechanics, and the expense of
subsisting men and teams, this deponent is fully convinced that,
including the wages of laborers and mechanics, the subsistence of
men and teams, and the wear and tear of tools, the expense of the
plaintiffs must have averaged, while hindered for want of cement,
from $150 to $175 a day. The deponent cannot say with exactness
what number of days the plaintiffs were compelled to suspend their
operations for want of cement, but thinks the whole detention may
have been equal to from thirty to forty entire days."
And also the answer of Milo Winchel, to an interrogatory on the
part of the plaintiffs.
"To the ninth interrogatory, this deponent answering, says that
the defendants delivered the cement very irregularly, in small
quantities, which caused very great hindrance and loss
Page 34 U. S. 545
of time, and expense to these plaintiffs, by keeping a very
large force of mechanics, common laborers, and teams lying idle and
upon expense of wages and board whilst waiting for cement; the
precise loss and damage incurred deponent cannot state, but, from
his best recollection, would say that the loss of time thus
incurred from 1 March, 1830, until the completion of the said locks
in August therefrom could not be less than forty days, at an
expense to these plaintiffs of from $160 to $170 per day, besides
the damage was very serious by delaying the work until the sickly
months of July and August, which was the cause of a great advance
in all kinds of labor to induce laborers to remain upon the line of
the canal at this season of the year; all this expense and risk
might have been saved to these plaintiffs, had the cement been
furnished as agreed on the part of the defendants, which would have
enabled the plaintiffs to have completed the whole of their work
early in June, 1830."
And also the answer of Henry Smith to an interrogatory on the
part of the plaintiffs.
"To the eleventh interrogatory this deponent will answer that
much delay was occasioned to the plaintiffs by the nondelivery of
cement in quantities to meet their demands; the consequence was
they were compelled to keep their hands under pay without labor,
and deferring the completion of their work until the more sickly
season, when labor, if procured at all, was obtained at an advance
from twenty to thirty-three percent. It is believed by this
deponent that if sufficient quantities had been delivered in
season, that the locks would have been completed by 4 July. That,
at the time locks No. 18 and 20 were in progress, the plaintiffs
often complained of a scarcity of cement, and one particular time
they were lying idle for a number of days with a large force of
hands, and, as deponent understood at the time, they were all under
pay from the plaintiffs. The number of days alluded to above is
believed to be two weeks or more, and many other times deponent
knows of there being a want of cement, but the aggregate cannot be
positively stated."
And also the answer of Moses Randal to an interrogatory on the
part of the plaintiffs.
"To the eighth interrogatory hereunto annexed this deponent,
Page 34 U. S. 546
answering, says that these plaintiffs were greatly hindered and
delayed, nearly the whole time they were employed in building these
locks, by the irregular manner in which the cement was delivered,
and that the amount of such hindrance upon locks No. 15, 16, 17, 18
and 20, from 1 March, 1830, till their completion in August
following, was not less than forty entire days, at an expense to
these plaintiffs of $170 per day. There were eighteen days at one
time in which the plaintiffs received but two small loads of cement
for the use of two hundred men, being insufficient to supply them
one day, besides the damage was very serious by protracting the
work until the sickly months of July and August, which was the
cause of a great advance in all kinds of labor, to induce the
laborers to remain upon the line of the canal at this season of the
year. All this risk might have been saved to these plaintiffs had
the cement been furnished as promised on the part of the
defendants, which would have enabled the plaintiffs to have
completed their whole work early in June, 1830, and deponent
further says that the plaintiffs suffered great hindrance and loss
by the interference of the work under Messrs Bargy and Guy on
section 18 by the breaking of the face stone by coming in contact
with their carts and wagons and by the men's being driven from
their work many times in a day to escape the dangers from the heavy
rock blasting upon said section; the damage done to the plaintiffs
during this interference deponent cannot precisely state, but knows
it was great. This deponent recollects that in one instance, on
Lock 18, a large rock was thrown against the wing wall of the lock
and so deranged several courses of their work as to require
relaying; in several other instances the work of the plaintiffs on
Locks 17 and 18 was deranged by the falling stones breaking and
displacing the cut stones in the wall. The plaintiffs remonstrated
against these injuries, and threatened to abandon the work, in
consequence of which Daniel Van Slyke, the agent of the defendants,
agreed to indemnify them against all damages arising from this
source."
And also the answers of Benjamin Wright to interrogatories put
to him by the plaintiffs.
"To the ninth interrogatory he saith that he knows that in many
cases the cement was very bad; in others, the same was damaged by
having been allowed to get wet before delivery
Page 34 U. S. 547
to the plaintiffs. That it was furnished by the defendants in
small quantities, and in a very irregular manner, and in many cases
not furnished at the times agreed upon between the plaintiffs and
dependants, it being expressly understood between the plaintiffs
and defendants, that the cement should at all times be furnished as
it was required for the prosecution of the work."
"To the tenth interrogatory he saith that he knows the
plaintiffs were put to serious loss and damage in consequence of
the failure of the defendants in supplying cement, as stated in the
last interrogatory, the said plaintiffs being obliged to keep their
laborers and mechanics in pay when they were actually unemployed,
said plaintiffs being in the daily expectation of receiving the
said cement, which state of things continued in some instances for
a week together, and at others for two, four, and six days, and
deponent further knows that, in consequence of such failure on the
part of the defendants to furnish the cement at the periods agreed
upon, the work of the plaintiffs was necessarily protracted to the
sickly part of the season, which necessarily caused a great
increase in the wages of the mechanics and laborers to induce them
to remain during the said period. Deponent further saith that he
knows that the president of the company on many occasions directed
the plaintiffs not to dismiss their men, stating from time to time
that he would have cement furnished which in many cases was not
furnished in compliance with his assurances, but deponent cannot
say what was the actual loss incurred by the plaintiffs, although,
as above stated, he believes it to have been very serious."
Upon which testimony the plaintiffs prayed the court to instruct
the jury, and it did on the said prayer instruct the jury that if
the jury believes from the said evidence that the defendants had,
on 2 September, 1829, and from that time till 20 January, 1830,
contracted with the plaintiffs to furnish them with cement,
&c., in due time, &c., and that the plaintiffs, expecting
that sufficient supplies of cement to go on with the work would be
furnished by the defendants, as defendants had so engaged to do,
hired a large number of hands and brought them to the locks, and
when the defendants had so failed to furnish the cement, kept the
same hands idle, waiting for cement, on the defendants'
Page 34 U. S. 548
desire that they should do so, in order to be ready to go on
with the work, and paid them their wages while so waiting, then the
plaintiffs are entitled under the count for money laid out and
expended, contained in this declaration, to recover the money so
paid to said hands during such periods. But that the plaintiffs are
not entitled to recover for wages paid to their workmen on account
of a deficiency of cement after the said 20 January, 1830, unless
the jury shall be satisfied by the said evidence that the said
resolution of the board of directors of 20 January, 1830, was
rescinded by the said board, and a new contract entered into
thereafter by the defendants of furnish cement to the plaintiffs,
and the subsequent failure on their part so to furnish it, and an
agreement also to pay for the wages of the plaintiffs' workmen,
while so waiting, and so forth.
The defendants excepted to this instruction.
The jury found a verdict for the plaintiffs for $20,707.56, on
which judgment was entered by the court, and the defendants
prosecuted this writ of error.
Page 34 U. S. 562
MR. JUSTICE McLEAN delivered the opinion of the Court.
The defendants here, who were plaintiffs in the circuit court,
commenced an action of assumpsit to recover a large sum alleged to
be due for the construction of certain locks, &c., from the
Chesapeake & Ohio Canal Company, and filed their declaration
containing nine general counts of
indebitatus assumpsit
for work done and materials found, money laid out and expended, an
account stated, &c., and the defendants pleaded the general
issue. On the trial, several exceptions were taken to the ruling of
the court by the plaintiffs, and one exception was taken by the
defendants, which presents the points for decision on the present
writ of error.
The following is the instruction referred to.
"In the further trial of this cause, and after the evidence and
instructions stated in the preceding bills of exceptions had been
given, and after evidence offered by the plaintiffs, of the payment
of moneys to the laborers for the time during the detention,
occasioned by the want of cement on Locks 5 and 6, the plaintiffs,
by their counsel, prayed the court to instruct the jury that if the
jury believes from the said evidence that the defendants had, on 2
September, 1829, and from that time till 20 January, 1830,
contracted with the plaintiffs to furnish
Page 34 U. S. 563
them with cement necessary, &c., in due time, &c., and
that the plaintiffs, expecting that sufficient supplies of cement
to go on with the work would be furnished by the defendants, as
defendants had so engaged to do, hired a large number of hands, and
brought them to the Locks, and when the defendants had so failed to
furnish the cement, kept the same hands idle, waiting for cement,
on the defendants' desire that they should do so in order to be
ready to go on with the work, and paid them their wages while so
waiting, then the plaintiffs are entitled, under the count for
money laid out and expended contained in the declaration to recover
the money so paid to said hands during such periods. But that the
plaintiffs are not entitled to recover for wages paid to their
workmen, on account of a deficiency of cement, after the said 20
January, 1830, unless the jury shall be satisfied by the said
evidence, that the said resolution of the board of directors, of 20
January, 1830, was rescinded by the said board, and a new contract
entered into thereafter by the defendants, to furnish cement to the
plaintiffs, and the subsequent failure on their part so to furnish
it, and an agreement also to pay for the wages of the plaintiffs'
workmen while so waiting,"
&c.
The resolution referred to in the bill of exceptions is in the
words following:
"Resolution of the Board of Directors of the Canal Company in
meeting January 20, 1830. Resolved that although this board has
stipulated to supply the contractors with water lime, yet the board
will not be held responsible for any damages arising from the want
of that article."
A bill of particulars was filed by the plaintiffs under the
order of the court, and in which bill the following item is
charged. "Detention and damage sustained, for want of cement in
Locks No. 5 and 6 -- $600."
This case has been ably argued on both sides, and the questions
involved in it are of much practical importance.
The counsel for the plaintiffs in error object to the bill of
particulars, and insist that the above item for damage for want of
cement, &c., is not sufficiently specific, as it does not
apprise the defendants of all the facts on which the charge for
damage is made. It does not state how the damage was sustained by
the plaintiffs, and on what ground an indemnity
Page 34 U. S. 564
was claimed of the defendants. A bill of particulars, it is
contended, when demanded, becomes a part of the declaration, and
with the exception of certain averments, it should contain equal
certainty.
There can be no doubt that a bill of particulars should be so
specific, as to inform the defendant, substantially, on what the
plaintiff's action is founded. This is the object of the bill, and
if it fall short of this, its tendency must be to mislead the
defendant, rather than to enlighten him.
As the bill of particulars is filed before the trial, it is
always in the power of the defendant to object to its want of
precision, and the court will require it to be amended before the
commencement of the trial. And if this be not the only mode of
taking advantage of any defect in the bill, in practice it is
certainly the most convenient for the parties.
In 4 Taun. 188, the court of common pleas say substantially,
"if a bill of particulars specifies the transaction upon which
the plaintiff's claim arises, it need not specify the technical
description of the right which results to the plaintiff out of that
transaction."
In that case, the plaintiff declared for goods sold and
delivered, and for money paid, and delivered to the defendant a
bill of particulars,
viz., "To 17 firkins of butter,
�55, 6 shillings, not saying for goods sold."
The court decided that the action could be sustained on the
count for money paid. And they remark, as to the objection taken
respecting the bill of particulars, bills of
"particulars are not to be construed with all the strictness of
declarations; this bill of particulars has no reference to any
counts, and it sufficiently expresses to the defendant that the
plaintiff's claim arises on account of the butter."
And we think, in the present case, that although the bill of
particulars does not specify technically and fully the grounds on
which the plaintiffs claim damages, yet, in the language of the
above case, it sufficiently expresses to the defendants that the
claim arises for want of cement in Locks No. 5 and 6.
But the ground on which some reliance seems to be placed for the
reversal of this judgment, and which, in the view of the court, is
one of the principal points presented by the record, is that the
jury were instructed to find for the plaintiffs below, on
Page 34 U. S. 565
proof of a special contract, and under a declaration containing
only general counts.
By the instruction of the court, if the jury found, from the
evidence, that the contract had been made by the defendants, as
stated, and that the money had been paid to the hands detained for
want of cement, the plaintiffs were entitled to a verdict on the
count for money laid out and expended.
In the argument, it was contended, that there was no legal proof
of the special contract. That a corporation can only contract
within the terms of its charter, and that there does not appear to
have been any action of the board, sanctioning the contract as
insisted on by the plaintiffs.
The ancient doctrine, that a corporation can act in matters of
contract only under its seal, has been departed from by modern
decisions, and it is now considered, that the agents of a
corporation may in many cases bind it, and subject it to an action
of assumpsit. But it is unnecessary to examine either the ancient
or modern doctrine on this subject; for as no exception was taken
to the evidence which conduced to prove a special contract in the
court below, the objection cannot be raised in this Court.
There can be no doubt that where the special contract remains
open, the plaintiff's remedy is on the contract, and he must set it
forth specially in his declaration. But if the contract has been
put an end to, the action for money had and received, lies to
recover any payment that has been made under it. The case of
Towers v. Barrett, 1 Term 133, illustrates very clearly
and fully this doctrine. In that case, the plaintiff recovered, on
a count for money had and received, ten guineas paid to the
defendant for a one horse chaise and harness, which were to be
returned on condition the plaintiff's wife should not approve of
the purchase, paying 3 shillings and 6 pence
per diem for
the hire, should they be returned, and as the plaintiff's wife did
not approve of the purchase, they were returned, and the hire was
tendered at the same time. "But if the contract remain open, the
plaintiff's demand for damages arises out of it, and then he must
state the special contract, and the breach of it."
It is a well settled principle, where a special contract has
been performed, that a plaintiff may recover on the general
Page 34 U. S. 566
counts. This principle is laid down by this Court in the case of
Bank of Columbia v.
Patterson's Administrators, 7 Cranch 299, 2 Cond.
501. In that case, the Court said:
"We take it to be incontrovertibly settled that
indebitatus
assumpsit will lie to recover the stipulated price due on a
special contract not under seal where the contract has been
executed, and that it is not in such case necessary to declare upon
the special agreement."
It would be difficult to find a case more analogous in principle
to the one under consideration than the above. The same questions,
as to the right of the plaintiff to recover on the general counts
where the special agreement was performed, and also as to the
powers of a corporation to bind itself through the instrumentality
of agents, were raised and decided in that case as are made in this
one. And it would seem, where this Court had decided the point in
controversy, and which decision had never afterwards been
controverted, that the question is not open for argument. But
whether this doctrine be considered as established by the
adjudications of this Court or the sanction of other courts, it is
equally clear that no principle involved in the action of assumpsit
can be maintained by a greater force of authority.
In 1 Bacon's Ab. 380 it is laid down that
"Wherever the consideration on the part of the plaintiff is
executed, and the thing to be done on the defendant's part is mere
payment of a sum of money due immediately, or where money is paid
on a contract which is rescinded, so that defendant has no right to
retain it; this constitutes a debt for which the plaintiff may
declare in the general count on an
indebitatus assumpsit.
Anciently the count in such cases was special, stating the
consideration as executory, the promise, the plaintiff's
performance, and the defendant's breach, but the indebitatus has
grown, by degrees, into use."
"So also if goods are sold and actually delivered to the
defendant, the price, if due in money, may be recovered on this
count, and this though the price is settled by third parties."
1 Bos. & Pull. 397; 12 East 1.
"Where the plaintiff let to the defendant land rent free, on
condition that the plaintiff should have a moiety of the crops, and
while the crop of the second year was on the ground, it was
appraised for both
Page 34 U. S. 567
parties and taken by defendant; it was held that the plaintiff
might recover his moiety of the value in
indebitatus
assumpsit, for crops, &c., sold, for by the appraisement,
the special agreement was executed, and a price fixed at which the
defendant bought the plaintiff's moiety."
The same principle is found in
Helps v. Winterbottom, 2
B. & A. 431;
Brooke v. White, 1 New Rep. 330;
Robson v. Godfrey, Holt 236;
Heron v. Gronger, 5
Esp. 269;
Ingram v. Shirley, 1 Stark. 185;
Forsyth v.
Jervis, 1 Stark. 437;
Harrison v. Allen, 9 Moore 28;
Bailey v. Gouldsmith, Peake 56;
Gandall v.
Pontigny, 1 Stark. 198;
Farrar v. Nightingale, 2 Esp.
639;
Riggs v.
Lindsay, 7 Cranch 500, 2 Cond. 585;
James v.
Cotton, 7 Bing. 266;
Administrators of Foster v.
Foster, 2 Binn. 4;
Lykes v. Summerel, 2 Browne
227.
As, by the instruction of the court, the jury must have found
the contract executed by the plaintiffs below, before they rendered
a verdict in their favor; we think the question has been settled by
the adjudged cases above cited, and that on this point there is no
error in the instruction of the court.
But it is insisted that in their instruction, the court lays
down certain facts as proved which should have been left to the
jury. If this objection shall be sustained by giving a fair
construction to the language of the court, the judgment must be
reversed, for the facts should be left with the jury, whose
peculiar province it is to weigh the evidence and say what effect
it shall have.
The instruction states,
"That if the jury believe from the said evidence that the
defendants had on, &c., contracted with the plaintiffs,
expecting that sufficient supplies of cement to go on with the work
would be furnished by the defendants,
as defendants had so
engaged to do, hired a large number of hands and brought them
to the Locks, and, when the
defendants had so failed to furnish
the cement, kept the said hands,"
&c.
The words italicized are those objected to, as assuming the
facts stated to be proved, and consequently superseding an inquiry
into those facts by the jury.
It must be observed that in the first part of the instruction,
the jury were told
"That if they believe from the said evidence that the defendants
had contracted with the plaintiffs to furnish
Page 34 U. S. 568
them with cement necessary, &c., in due time, &c., and
the plaintiffs expecting that the cement would be furnished,
as
defendants had so engaged to do, &c.,"
making the words italicized to depend upon proof of the
contract,
viz., the furnishing of the cement in due time,
as stated in the bill of exceptions; it would therefore seem to be
clear that these words could not have withdrawn from the jury any
fact, as they were made to depend on the establishment of the
contract by the finding of the jury. And the same remark applies to
the other words objected to -- that is, when "the defendants had so
failed to furnish the cement," for these words could have had no
influence with the jury, unless the evidence, by their finding, not
only established the contract to deliver the cement, but also
showed a failure by the defendants to deliver it.
It therefore appears that the words objected to in the
instruction, when viewed in connection with its scope and the
language used, did not assume facts by which the jury could have
been misled, but stated them as resulting from the finding of the
jury, that the contract had been made and broken by the defendants,
as hypothetically stated in the instruction.
It is objected, that there was no evidence in the case,
conducing to prove the facts on which the above instruction was
founded.
The court ought not to instruct, and indeed cannot instruct on
the sufficiency of evidence, but no instruction should be given,
except upon evidence in the case. Where there is evidence on the
point, the court may be called on to instruct the jury as to the
law, but it is for them to determine on the effect of the
evidence.
In the present case, there was evidence, which was not objected
to, conducing to prove the contract, hypothetically stated in the
instruction, and in such case, whatever ground there might have
been for a new trial, there is none for the reversal of the
judgment.
The instruction was limited to the damages sustained by the
plaintiffs, for a failure to deliver cement by the defendants, for
the construction of Locks numbered Five and Six, and as the bill of
particulars charges the damages thus sustained at $600 only, and
the damages assessed by the jury amount to the sum of $20,707.56
cents, it is contended by the
Page 34 U. S. 569
counsel for the plaintiffs in error, that on these facts the
judgment should be reversed.
In the course of the trial twelve bills of exceptions were taken
by the plaintiffs to the rulings of the court on the various points
raised; but these exceptions are not now before the Court for
decision. It is insisted, however, that although the questions of
law raised by these exceptions are not before the court; yet the
facts, in regard to the evidence which is shown by the exceptions,
are before them, and should be considered in reference to the point
now under examination.
In the eleventh bill of exceptions, after certain prayers by the
plaintiffs' counsel, which were refused by the court, the
defendants, by their counsel,
"prayed the court to instruct the jury, that the plaintiffs are
not entitled to recover damages under either of the courts in the
declaration in this cause, by reason of any failure on the part of
the defendants to deliver cement to the plaintiffs for the
prosecution of their work on the Locks contracted to be built by
them, which the court gave as prayed."
And in the twelfth exception they gave a similar instruction, on
the prayer of the defendants.
From these exceptions and others taken by the plaintiffs below,
and the bill of particulars, it is contended, that it sufficiently
appears there was no evidence before the jury under the
instructions of the court, except that which conduced to show the
amount of damages sustained by the plaintiffs, for the want of
cement in the construction of Locks five and six.
If it were proper to look into the exceptions of the plaintiffs
below to ascertain this fact, there would still be no difficulty in
overruling the objection, for the instruction given on the prayer
of the plaintiffs below, and excepted to by the defendants, and
which is the error complained of, may be reconciled with the other
exceptions, on the ground that additional evidence was heard by the
jury before the instruction was given.
But if this were not the case, it would afford no ground for the
reversal of the judgment of the circuit court.
Whether the court erred or not in refusing to give the various
instructions prayed for by the plaintiffs below, is not now a
subject of inquiry. It may be admitted that they did err, so that
if the verdict had not been satisfactory to the
Page 34 U. S. 570
plaintiffs, they might have reversed the judgment on a writ of
error; yet the evidence on which those instructions were refused
remained in the cause for the action of the jury. And as additional
evidence was given, as appears by the exception of the defendants
below, the cause was submitted to the jury upon the whole
evidence.
Whether the jury assessed the damages on account of the injury
sustained by the plaintiffs, for the want of cement in the
construction of Locks other than those numbered five and six, or on
account of other items stated in the bill of particulars, it is
impossible for this Court to determine. If the jury failed to
observe the instructions of the court or found excessive damages,
the only remedy for the defendants was by a motion for a new trial.
As the case now stands, we are limited to the legal questions which
arise from the instruction given on the prayer of the plaintiffs,
which was excepted to by the defendants, and on which this writ of
error has been brought. And as it appears from the views already
presented, that the circuit court in giving this instruction did
not err, the judgment below must be
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof, it is ordered and adjudged by
this Court, that the judgment of the said circuit court in this
cause be, and the same is hereby affirmed with costs and damages at
the rate of six percentum per annum.
