Davis v. Patrick
122 U.S. 138 (1887)

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U.S. Supreme Court

Davis v. Patrick, 122 U.S. 138 (1887)

Davis v. Patrick

Argued April 14, 1887

Decided May 23, 1887

122 U.S. 138




Where a bill of exceptions is signed after the beginning of the term of this Court when the writ of error is returnable, and during a term of the circuit court succeeding that at which the case was tried, but was seasonably submitted to the judge for signature, and the delay was caused by the judge, and not by the plaintiff in error, the bill of exceptions will not be stricken out.

Page 122 U. S. 139

A written instrument between A and B held to constitute A the creditor of B, and not the partner, and not to make A liable to third parties on contracts made by B.

In a suit by a third party against A to make him liable on such a contract, where the written instrument is in evidence, an instruction to the jury is erroneous which overrides the legal purport of the instrument.

An instruction to a jury based upon a theory unsupported by evidence and upon which theory the jury may have rendered the verdict is erroneous.

This is an action at law brought in a court of the State of Nebraska, on the 24th of November, 1880, and removed, on the petition of the defendant, into the Circuit Court of the United States for the District of Nebraska by Algernon S. Patrick against Erwin Davis, to recover certain sums of money.

There are two causes of action set forth in the petition by which the suit was commenced. Under the first one, the plaintiff claims to recover $2,677.90, with interest from September 3, 1877, and $8,806.92, with interest from February 7, 1877. No question arises here as to the first cause of action. The second cause of action alleged in the petition is that on or about the 15th of November, 1873, the plaintiff was employed by the defendant to transport silver ore from the Flagstaff mine, in Utah Territory, to the furnaces at Sandy in that territory for a certain hire and reward then agreed upon therefor between the parties; that the plaintiff continued in that employment until on or about the 29th of November, 1875, at which date the account of services was settled and stated from the books of the defendant, and there was then found to be due to the plaintiff $26,539.54, and judgment is prayed for that sum, with interest from November 20, 1875. The answer of the defendant to the second cause of action is a general denial. At the trial before a jury, there was a verdict for the plaintiff, on the 20th of June, 1883, for $50,015.72, and a judgment accordingly, to review which the defendant has brought a writ of error.

It was not denied that the services were rendered. The question at issue was whether they were rendered for Davis or for an English company, owners of the mine, and the relations of Davis to the mine depended in part upon the construction

Page 122 U. S. 140

of the contract between him and the company set forth at length below in the opinion of the Court. M. T. Patrick, who employed Algernon Patrick, was in charge of the mine under the J. N. H. Patrick named in this contract, and also in the power of attorney which follows that contract in the opinion of the Court, to both of which reference is made for the better understanding of the case.

The plaintiff moves to strike the bill of exceptions from the record, for the reason that it was not allowed and signed in proper time. On the day the judgment was entered, June 25, 1883, a written stipulation between the parties was filed, providing that the defendant should have forty days to prepare and present to the court his bill of exceptions, and that the plaintiff should have twenty days thereafter to examine the same and make any suggestions of omission, addition, or correction thereto. On the 16th of August, 1883, the writ of error was allowed and filed, a supersedeas bond, duly approved, was filed, and a citation was duly issued, the writ of error being returnable at October term, 1883. On the 14th of September, 1883, the following written stipulation, entitled in the cause, was made between the parties:

"The bill of exceptions in this case having been partially settled by his Honor, Judge Dundy, and he desiring to be absent from the district for a month or more, and being unable to settle the remainder of the bill before leaving, it is hereby stipulated that the same may be settled and signed at any time before November 1, 1883, and that the record may be filed in the Supreme Court by the first of December, 1883, with the same effect as if filed at the beginning of the October term."

The term of the court at which the trial was had and the judgment rendered adjourned sine die on the 20th of October, 1883. The succeeding term of the court began on the 12th of November, 1883. The bill of exceptions was allowed and signed by the judge on the 8th of December, 1883, and was filed on the same day. The record was filed in this Court on the 26th of December, 1883.

Page 122 U. S. 142

MR. JUSTICE BLATCHFORD delivered the opinion of the Court.

Page 122 U. S. 143

The point taken is that, as the bill of exceptions was signed after the beginning of the term of this Court at which the writ of error was made returnable and during a term of the circuit court succeeding that at which the case was tried, it cannot be considered. But we are of opinion that this objection cannot avail. The stipulation of September 14, 1883, shows on its face that the matter of the settlement of the bill of exceptions had been submitted to the judge, and that the delay was agreed to for the convenience of the judge. The purport of the stipulation is that the bill had, with the knowledge of the plaintiff, been tendered to the judge for signature. This being so, the consent of the parties that the judge might delay the settlement and signature did not have the effect to cause any more delay than would have occurred if the judge had delayed the matter without such consent. The defendant was not to blame for the delay beyond the time named in the stipulation. He appears to have done all he could to procure the settlement of and signature to the bill, and he cannot be prejudiced by the delay of the judge. The bill of exceptions shows on its face that the several exceptions taken by the defendant were taken and allowed at the trial and before the verdict. The cases cited by the plaintiff, Walton v. United States, 9 Wheat. 651; Ex Parte Bradstreet, 4 Pet. 102; Sheppard v. Wilson, 6 How. 260, 47 U. S. 275; Muller v. Ehlers,91 U. S. 249, and Coughlan v. District of Columbia,106 U. S. 7, do not contain anything in conflict with this ruling. It is supported by United States v. Breitling, 20 How. 252. The motion to strike out the bill of exceptions is therefore denied.

The claim of the plaintiff is that he was employed not by the defendant personally, but by the plaintiff's brother, M. T. Patrick. The defendant, not disputing the rendering of the services or their value, denies that they were rendered for him and denies that M. T. Patrick was his agent. He contends that the services were rendered to the Flagstaff Silver Mining Company of Utah, Limited, an English corporation, that M. T. Patrick was the agent of that company, and that as such he employed the plaintiff. The question of this agency was the principal question in dispute at the trial.

Page 122 U. S. 144

The Flagstaff mine was owned in 1870 by certain parties in Utah Territory, who sold it, through the defendant, to the Flagstaff Silver Mining Company. That company continued to own and operate the mine until December, 1883, when J. N. H. Patrick, another brother of the plaintiff, went from New York to London, the defendant being then in London. On the day that J. N. H. Patrick arrived in London the company received a telegram from one Maxwell, superintendent of its mine in Utah, stating that the mine was attached for debt. It applied to the defendant for a loan of money, whereupon the following written agreement was made between the company and the defendant on the 16th of December, 1873:

"This agreement, made this 16th day of December, one thousand eight hundred and seventy-three, between the Flagstaff Silver Mining Company of Utah, Limited, of the one part, and Erwin Davis, now of the City of London, of the other part."

"Whereas the said Erwin Davis, on the 12th of June, one thousand eight hundred and seventy-three, advanced the said company the sum of five thousand pounds at the rate of six percent per annum interest;"

"And whereas the said sum of five thousand pounds is now due and owing to said Erwin Davis, with the interest thereon;"

"And whereas it is necessary that the said company should have a further advance of money for the purpose of continuing the development of their mine and for carrying on their business;"

"And whereas the said Erwin Davis doth hereby agree to advance to said company at such time or times as may be necessary for the purpose aforesaid, not to exceed in amount the sum of ten thousand pounds, in addition to the said sum of five thousand pounds already advanced;"

"And whereas the said company has at different times and dates sold to the said Erwin Davis five thousand one hundred and ninety-five tons of ore, which said ore the said company agreed to deliver to the said Erwin Davis at the ore house of said company free of cost; "

Page 122 U. S. 145

"And whereas they have so delivered two hundred tons of said ore, leaving a balance of four thousand nine hundred and ninety-five tons yet undelivered, the cost of said ore having all been paid to said company by said Erwin Davis,"

"Now therefore it is agreed between owing to said Erwin Davis by the said of the said sum of money now due and owing to said Erwin Davis by the said company, and the further advances to be made by the said Erwin Davis, as herein agreed, and in further consideration of the premises heretofore stated, J. N. H. Patrick, of Salt Lake, is appointed manager of all the property of said company in Utah, and the said J. N. H. Patrick, as said manager, by himself or his agents, is to have the exclusive, sole, and irrevocable (except as hereinafter mentioned) management of all the said company's properties in Utah, and of all the business in Utah of the said company in mining and smelting silver and other ores, and any and all other lawful business, and, as such manager aforesaid of the business and properties aforesaid, he is hereby authorized and empowered to do, execute, and perform any and all acts, deeds, matters, or things whatsoever which ought to be done, executed, and performed, or which, in the opinion of the said J. N. H. Patrick, ought to be done, executed, or performed in or about the concerns, engagements, or business of the said company, of every nature and kind whatsoever, as fully and effectually as it could do if the said company were actually present, hereby ratifying and confirming whatsoever the said J. N. H. Patrick may do in and about the company's concerns and business. And it is hereby further agreed that the said J. N. H. Patrick, or his agents, in furtherance of the purposes aforesaid, is to enter into the possession of all the said company's properties in Utah necessary for conducting the business and management thereof as aforesaid until such time as, out of the profits of the workings of the properties aforesaid, he, the said J. N. H. Patrick, has repaid to Erwin Davis the said sum of five thousand pounds, with the interest thereon, and also has repaid to him all and every sums of money he may have advanced to the said company under this agreement, together with interest thereon at the rate of six pounds

Page 122 U. S. 146

per centum per annum, and also until he has mined and delivered to Erwin Davis all the ores sold him by said company, as per agreement herein stated, and also until he has smelted the ore so mined and delivered to him, in the said company's furnaces, according to the terms and agreement dated the 12th day of September last, made between the said company and Erwin Davis, and when he, the said J. N. H. Patrick, has so paid to him all the moneys so advanced said company and interest as aforesaid, mined and delivered the ores so sold and contracted, and smelted said ores, and done and performed all the agreements herein contained, then the said J. N. H. Patrick may resign the management aforesaid, and shall, upon being called upon so to do, deliver to said company all of said properties in as good condition as possible after the necessary workings, mining, and smelting, as herein agreed to be done and performed. And it is hereby further agreed that the said mine is to be worked and mined by the said J. N. H. Patrick in a proper and miner-like manner, and that the said business of said company is to be managed with economy, and for the best interests of the parties hereto; that a statement of all the business transactions, with accounts of the same, showing all moneys received and the source from whence so received and all moneys paid out, with the proper vouchers therefor, is to be made monthly to said company at their office at the City of London by the said J. N. H. Patrick. And it is hereby further agreed that nothing herein contained shall be construed to defeat or impair any legal rights the said Erwin Davis may have for the moneys now due said Erwin Davis, or so to be advanced by said Erwin Davis, or for the delivery of the ores so sold said Erwin Davis. And it is hereby further agreed, between the parties hereto, that if at any time, the said Erwin Davis becomes dissatisfied with the management of the business and the property in Utah, he may suspend and remove the manager and appoint another manager in his place, with any or all rights, powers, or authority delegated under this agreement, and should the said Erwin Davis proceed to act upon the powers contained in the last preceding clause, he will consult with the board of directors of the said company as to the new manager from time to time to be appointed. "

Page 122 U. S. 147

"In witness whereof the said parties here unto have set their hands the day and year first above written."

"J. R. GOLE"

"Secretary, for and on behalf of the Flagstaff"

"Silver Mining Company of Utah, Limited"


"Witness to the foregoing signatures --"


At the same time and as a part of the same arrangement, the company, on the 16th of December, 1883, executed to J. N. H. Patrick the following power of attorney:

"Know all men by these presents that we, the Flagstaff Silver Mining Company, do hereby constitute and appoint John Nelson Hays Patrick, of Salt Lake City, Utah, in the United States of America, their true and lawful attorney to take possession of and carry on and manage the workings of the mine or mines belonging to the said company, and for that purpose to appoint officers, clerks, workmen, and others, and to remove them and appoint others in their place, and to pay and allow to the persons to be so employed such salaries, wages, or other remuneration as he shall think fit; also to ask, demand, sue for, recover, and receive of and from all persons and bodies politic or corporate, to pay, transfer, and deliver the same, respectively, all sums of money, stocks, funds, interest, dividends, debts, dues, effects, and things now owing or payable to the said company, or which shall at any time or times hereafter be owing or belong to the said company by virtue of any security or upon any balance of accounts of other wise howsoever, or of any part thereof, respectively; to give, sign, and execute receipts, releases, and other discharges for the same, respectively, and on nonpayment, nontransfer, or nondelivery thereof, or of any part thereof, respectively, to commence, carry on, and prosecute any action, suit or other proceeding whatsoever for recovering and compelling the payment, transfer, or delivery thereof, respectively; also to settle, adjust, compound, submit to arbitration

Page 122 U. S. 148

and compromise all actions, suits, accounts, reckonings, claims, and demands whatsoever which now are or hereafter shall or may be pending between the said company and any person or persons whomsoever, in such manner and in all respects as the said John Nelson Hays Patrick shall think fit; also to sell and convert into money any goods, effects, or things which now belong or at any time or times hereafter shall belong to said company, and also to enter into, make, sign, seal, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of him, the said John Nelson Hays Patrick, be necessary or proper to be entered into, made, or signed, sealed, executed, delivered, acknowledged, or performed for effectuating the purposes aforesaid, or any of them, and for all or any of the purposes of these presents, to use the name of the said company, and generally to do, execute, and perform any other act, deed, matter, or thing whatsoever which ought to be done, executed, or performed, or which in the opinion of the said John Nelson Hays Patrick ought to be done, executed, or performed in or about the concerns, engagements, and business of the said company, of every nature and kind whatsoever, as fully and effectually as it could do if the said company were actually present, and the said company do hereby agree to ratify and confirm all and whatsoever the said John Nelson Hays Patrick shall lawfully do or cause to be done in or about the premises, by virtue of these presents."

"In witness whereof, the said company have hereunto affixed their official seal this sixteenth day of December, one thousand eight hundred and seventy-three."


"RUSSELL GOLE Directors"

"J. R. GOLE, Secretary"



"5 & 6 Gt. Winchester St., London"

J. N. H. Patrick testifies that in consequence of the arrangement made between the company and the defendant, though prior to the actual execution of the papers of the

Page 122 U. S. 149

16th of December, 1883, he, J. N. H. Patrick, telegraphed, from London to M. T. Patrick in the United States instructions to take charge of the mine, directing him to stave off all debts he could and saying that money would be forwarded to him to keep the mine running, and that full instructions had been written to him, and that the company telegraphed to Maxwell to turn the mine over to M. T. Patrick. J. N. H. Patrick testifies that the defendant did not send any such telegram to M. T. Patrick.

On the other hand, M. T. Patrick testifies that he received a telegram from London with the name of the defendant signed to it instructing him to go to Utah and take charge of the mine; that that was the authority upon which he did so; that he received possession of the mine from Maxwell, and that he employed the plaintiff to do the hauling of the ore. J. N. H. Patrick testifies that when the news of the financial difficulties of the company arrived in London and the company applied to the defendant for a further loan of money, he refused to make it unless the company would give him the management of the mine, and that the company declined to do so, but agreed to make the arrangement evidenced by the papers of December 16, 1873.

The purport and bearing of these papers is very plain on their face. The company owed the defendant

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