United States v. Le Baron - 71 U.S. 642 (1866)


U.S. Supreme Court

United States v. Le Baron, 71 U.S. 4 Wall. 642 642 (1866)

United States v. Le Baron

71 U.S. (4 Wall.) 642

Syllabus

1. When a contract is alleged by the pleadings to have been made on a certain day, it is no variance to offer in evidence a written contract which took effect on a different day.

2. If it be proved that a bond bearing date the first day of the month, did not become obligatory until the fifteenth, this is no variance, although the bond is counted on in the pleadings as a contract made on the first day of the month and bearing that date.

This was an action of debt brought by the United States against Le Baron, surety of Beers, deputy postmaster at Mobile, on an official bond, dated the first of July, 1850.

The declaration set out:

"For that whereas heretofore, to-wit, on the first day of July, A.D. 1850, at Mobile, to-wit, in the state aforesaid and within

Page 71 U. S. 643

the jurisdiction of this Court, the said Le Baron, by his certain writing obligatory sealed with his seal &c., acknowledged himself to be held and firmly bound to the United States in the sum of $20,000."

The assignments of the breaches were laid in these words:

"That while the said Beers was deputy postmaster as aforesaid under said writing obligatory, and after the making and delivery thereof, to-wit, on the 10th day of July aforesaid, and divers other days before the commencement of the suit,"

&c.

The case had been already before this Court at December Term 1856, and is reported in 19 Howard. * The facts then thus appeared:

Beers was appointed deputy postmaster at Mobile by the President during the recess of the Senate, and received a commission bearing date in April, 1849, to continue in force until the end of the next session of the Senate, that is to say until the 30th of September, 1850.

In April, 1850, before the old term had expired, he was nominated by the President to the Senate for the same office, and the nomination having been confirmed, a commission was made out and signed by President Taylor, but the President dying, it had not been transmitted to him at the date of the bond, July 1. The condition of the bond was simply that whereas Beers was "deputy postmaster at Mobile, . . . now if he should well and truly execute the duties of the said office," the bond should be void. There was nothing, therefore, in the bond to show to which term of office it meant to apply -- whether to the earlier one which underlay the second or to the second which overlapped partially the first. The default assigned as a breach of the bond was admitted to have occurred under the second appointment, and the principal question on the writ of error then before this Court was whether the bond secured the faithful performance of the duties of the office under the first or under the second appointment.

Page 71 U. S. 644

The third plea of the defendant alleged that from the 1st July until the 30th September, Beers was deputy postmaster under an executive appointment made by the President during the recess of Congress, and that the bond sued on was intended to apply to that appointment and to that term alone, and that during that term no default had occurred. The replication was "that on and after the delivery by the defendant of the bond aforesaid, to-wit, on the 1st day of July," and from thenceforward for four years, Beers held under the appointment confirmed by the Senate, and that the bond was made for the faithful discharge of duty under this appointment -- the last one. The rejoinder was that "at the time of the execution of the bond," Beers was not postmaster under the appointment set forth in the replication, but under the Executive appointment -- and that the bond secured the performance of duty only during the time mentioned in the plea. Issue was joined on this rejoinder of the defendant.

The court held that the bond being an official and statutory bond, spoke not like ordinary bonds from its date, but from the time when it reached the Postmaster General and was accepted by him. The judgment was reversed and a venire de novo awarded.

On a subsequent trial it was proved that the bond was accepted July 15. Thereupon circuit court instructed the jury that if the bond given in evidence was not approved until July 15, 1850, there was a variance between the allegation and the proof. And a verdict having gone accordingly for the defendant, the instruction just mentioned was the chief matter now assigned as error. A few exceptions to the admission of evidence also appeared upon the record.

Page 71 U. S. 647



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