Garland v. Davis
45 U.S. 131

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U.S. Supreme Court

Garland v. Davis, 45 U.S. 4 How. 131 131 (1846)

Garland v. Davis

45 U.S. (4 How.) 131

Syllabus

This was an action on the case, brought by Davis against Garland, the former Clerk of the House of Representatives. The declaration set out, by way of inducement, a contract between Davis and Franklin, the predecessor in office of Garland, and then charged upon Garland a wrongful and injurious neglect and refusal to furnish a copy of certain laws to Davis, as had been agreed by Franklin.

The plea was "non assumpsit," and the issue and verdict followed the plea.

This court can notice a material and incurable defect in the pleadings and verdict, as they are represented in the record to have existed in the court below, although such defect is not noticed in the bill of exceptions, nor suggested by the counsel in argument here.

When a declaration sounds in tort and the plea is "non assumpsit," such a plea would be bad on demurrer. If not demurred to, and the case goes to trial (the issue and verdict following the plea), the defect is so material that it is not cured by verdict under the statute of jeofails.

Bad pleas, which are cured by verdict, are those which, although they would be bad on demurrer because wrong in form, yet still contain enough of substance to put in issue all the material parts of the declaration.

The provision by Congress in relation to amendments, which is found in the 32d section of the Judiciary Act of 1789, is similar to that of 32 Hen. 8, but certainly not broader.

The issue was an immaterial issue.

The opinion of this court in Patterson v. United States, 2 Wheat. 221, reviewed and reaffirmed, namely

"Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue, and although the court in which it is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appear to that court, or to the appellate court, that the finding is different from the issue, or is confined only to a part of the matter in issue, no judgment can be rendered on the verdict."

This principle applies equally to a plea varying from the substance of the declaration.

In this case, the verdict does not find any of the misfeasance charged upon the defendant.

If the merits of the case were passed upon in the court below, it was illegally done, because no evidence was competent except such as related to the promise described in the declaration.

This court abstains from awarding a repleader, for the reasons stated in the opinion, but remands the case so that the pleadings may be amended.

Page 45 U. S. 132

This was an action on the case, brought by Davis, the defendant in error, against Garland, the Clerk of the House of Representatives.

The circumstances under which the suit was brought are thus set forth in the plaintiff's declaration, which was filed on 16 September, 1839.

"DISTRICT OF COLUMBIA,"

"Washington county, to-wit:"

"Hugh A. Garland, late of said county, was attached to answer to George M. Davis in a plea of trespass on the case and so forth. And whereupon the said Davis, by H. M. Morfit, his attorney, complains, that whereas the House of Representatives of the United States had, at the first session of the 25th Congress, which was before the committing of the grievances herein complained of, passed a resolution that the clerk of said House be, among other things, directed to cause to be printed a ninth volume of the laws of the United States, after the manner of the eighth volume thereof, and being so directed, in pursuance of such resolution the then clerk of said House, to-wit, Walter S. Franklin, in the month of July of the year 1838, at the county aforesaid, had employed the said plaintiff, and, in his capacity of clerk of said House, had agreed and contracted with said plaintiff to print a ninth volume of said laws in the manner as resolved, and to deliver from his office, as Clerk of the House aforesaid, a copy of said laws to said plaintiff, to enable him to print the same, and had directed the Chief Clerk in the office of said Clerk of the House of Representatives to prepare the said copy and deliver the same to said plaintiff; he, the said plaintiff, in consideration thereof, had made ample arrangements, and employed the means to print the said ninth volume of said laws, and was in all respects ready and willing to print the same after the manner as directed in said resolution when the said Walter S. Franklin departed this life, and the said Hugh A. Garland was elected his successor as Clerk of the House of Representatives aforesaid, and had charge of the laws aforesaid, from which the said ninth volume was to be printed. And the said plaintiff having the contract aforesaid, and in consideration thereof having prepared for the faithful execution of the terms thereof according to said resolution, and having also, soon after the election of said defendant as clerk aforesaid, to-wit, on or about the month of December, in the year 1838, at the county aforesaid, and before the committing of the grievances herein complained of, the said defendant was notified of said subsisting contract, and of plaintiff's readiness and willingness and preparation to comply with the same according to the said resolution, all of which notification of contract and preparation, as given aforesaid, the said plaintiff avers, and the said defendant was in duty bound, as clerk aforesaid, to deliver a copy of said

Page 45 U. S. 133

laws to said plaintiff, in consequence and by reason of the said resolution of Congress and the said contract of said plaintiff. And he the said plaintiff afterwards, to-wit, on or about 1 February, 1839, at the county aforesaid, asked and demanded of said defendant, who had charge of said laws from which the said ninth volume was to be printed, as Clerk of the House of Representatives aforesaid, a copy of said laws under his charge, for the purpose of printing the same according to said contract, and in the manner as directed in said resolution, and without which copy from the office of said clerk the said plaintiff could not print the said laws as directed in said resolution; that the said defendant, contriving and wrongfully and injuriously intending to injure the said plaintiff, and to deprive him of the profits, and emoluments, and advantages which he might and otherwise would have derived and acquired from the printing of said ninth volume of the laws of the United States, and of the profits, emoluments, and advantages of the said subsisting contract, well knowing that, without a copy of said laws from his said office, the plaintiff could not print the same as directed in said resolution; and the said defendant being in duty bound to deliver a copy of said laws, as clerk aforesaid, to said plaintiff, to comply with said resolution of Congress and with plaintiff's contract aforesaid, afterwards, to-wit, on or about 1 February, 1839, at the county aforesaid, and on divers other days and times between that day and the day of the issuing the writ in this behalf, did wrongfully and injuriously refuse to deliver or furnish or permit to be delivered from said office or furnished therefrom to said plaintiff a copy of the laws of the United States for printing the said ninth volume of said laws, as resolved in said resolution, and did also wrongfully and injuriously refuse to allow the said plaintiff to print the said ninth volume of said laws in the manner directed in said resolution, and did prevent and hinder him from printing the same. By means whereof the said George M. Davis lost the printing of said ninth volume of said laws, and the benefit of said contract, and hath been hindered and prevented from making, deriving, and having the profits, emoluments, and advantages of such printing, and of the compliance, upon his part, with the said contract, and hath also lost his time, trouble, and money, in preparations for complying with said contract, which profits, emoluments, and advantages [he] hath been so hindered from making, and time, trouble, and money he hath so lost in said preparations, were of great value, to-wit, of the value of two thousand five hundred dollars, current money, and which profits and money he, the said plaintiff, might and would have had and received but for the wrongful conduct of said defendant."

There was another count in the declaration, setting forth the same circumstances in a different manner.

Page 45 U. S. 134

The plea was "nonassumpsit," upon which issue was joined and the cause went on to trial. The record, after mentioning the names of the jury, proceeded thus:

"Who, being empanelled and sworn to say the truth in the premises, upon their oath do say that the said defendant did assume upon himself in manner and form as the aforesaid plaintiff above against him hath complained, and they assess the damages of the said plaintiff, sustained by reason of the nonperformance of the promise and assumption aforesaid, to the sum of nineteen hundred dollars current money."

A motion was then made in arrest of judgment for the following reasons, viz.:

"1. Because there is no cause of action stated in the first count of the "

"2. Ditto, as to the second count."

"3. Because there is a general verdict, and one count is bad."

"F. S. KEY, for defendant"

This motion was overruled, and judgment entered upon the verdict.

In the course of the trial, two bills of exceptions were taken on the part of the defendant, which were as follows:

"1st Exception. In the trial of this cause, the plaintiff, having offered the resolution of Congress of 14 October, 1837, proved that in July, 1838, a verbal contract was made between the plaintiff and Walter Franklin, then Clerk of the House of Representatives of the United States, for the printing of the ninth volume of the laws of Congress, in which it was agreed that the plaintiff should do the printing thereof on the same terms as had been previously agreed with plaintiff's father, who had died some short time before, and had been paid to said plaintiff's father for the eighth volume of the laws of the United States, and was to be paid for the same at the usual Congress prices -- the printing to be executed under the superintendence and direction of Samuel Burche, Chief Clerk of said House of Representatives; that no minute or entry of said agreement was made in writing, among the books and papers of said Franklin's office; that it is usual and customary for the contracts made on the authority of the House to be made verbally, and the same have always been received by the House and paid for; and that the said plaintiff frequently, after the making of the said agreement, called on said Burche for the work, stating his readiness to proceed with the work, and did not receive the same, because the said Burche had not prepared the laws for publication."

"And then further proved that the said Walter Franklin died in September, 1838, and the defendant was elected Clerk of the House on the first Monday of December, 1838; that some time afterwards, in December, 1839, the said Burche, not having yet

Page 45 U. S. 135

prepared the said laws for said publication, and the said plaintiff waiting as before for the same, the said Garland was informed, about 1 January, 1839, of the contract so as aforesaid verbally made between the said Franklin and the plaintiff, and observed that he had understood such a resolution was passed, and that such a work was to be given out for printing, and that he considered that as the agreement was a verbal one it was not binding, and that he had the right to give the contract to whom he pleased; that afterwards, in about two months from the beginning of December, 1838, he was again called upon and informed of the said contract, verbally made with the plaintiff by the said Franklin, when he said he had made an agreement or a contract with one Langtree, and that the said Garland did make such agreement with said Langtree, and ordered the work not to be given to the said plaintiff, but to be given to said Langtree to be printed, which was done accordingly, and the plaintiff thereby prevented from doing the work."

"And further proved that said plaintiff had made considerable preparations for the work and had engaged Mr. Gideon to do the printing of the work, and had transferred to said Gideon his office and press, valued at $1,000, to be paid for by the profits of the work -- of all which the defendant was informed before he made the contract with Langtree; and that plaintiff suffered considerable loss by the taking away said contract; and that said Gideon, in the prosecution of his preparations for said work, had expended $600 or $700 for paper for that very work."

"And further that at the time of making said verbal contract with said Franklin, the plaintiff asked him if it was necessary it should be reduced to writing, and was answered that it was not necessary and was not usual; and also proved that there was no written contract in the office of the clerk for the printing of the eighth volume of the laws of the United States. And that said Franklin knew and assented to the plaintiff's engaging said Gideon to do the said printing at the time of said contract; and that the defendant was advised by the clerks, before he made the contract with said Langtree, to be cautions and not get into difficulties by giving the work to another. And that no written contract with said Langtree, nor any memorandum thereof, appears in the office of said clerk."

"And upon the evidence aforesaid of the said plaintiff, the defendant, by his counsel, prayed the court to instruct the jury that if the same was believed by the jury to be true, the plaintiff was not entitled to recover, which the court refused -- to which refusal defendant excepts, and prays the court to sign and seal this bill of exceptions, which is done this 14 April, 1842."

"W. CRANCH [SEAL]"

"B. THRUSTON [SEAL]"

"JAS. S. MORSELL [SEAL]"

Page 45 U. S. 136

"2d Exception. And thereupon the defendant, on the said evidence, prayed the court to instruct the jury as follows:"

"If the jury believe from the evidence that the defendant, in making the subsequent contract with Langtree, and causing the compilation to be delivered to him to be printed, acted officially and bona fide, and not with corrupt motives, and verily believed that the prior contract made verbally with the plaintiff was not obligatory, then he is not liable to damages in this action upon the evidence aforesaid; which also the court refused to give -- to which refusal defendant excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 14th day of April, 1842."

"W. CRANCH [SEAL]"

"B. THRUSTON [SEAL]"

"JAS. S. MORSELL [SEAL]"

Page 45 U. S. 143

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