Packet Company v. Sickles
72 U.S. 580 (1866)

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U.S. Supreme Court

Packet Company v. Sickles, 72 U.S. 5 Wall. 580 580 (1866)

Packet Company v. Sickles

72 U.S. (5 Wall.) 580


1. Where the record of a former suit is offered in evidence, the declaration setting out a special contract, but not saying whether it was written or parol, and where jurors who were empanelled in the former suit are brought to testify that the contract declared on in the second suit was the same contract that was in controversy in the former one, and was passed on by them, testimony may be given on the other side that the contract was a parol one, so as to let in a defense of the statute of frauds.

[In the District of Columbia, in which the suits in this case were brought, the British statute of frauds, providing that "no suit shall be brought to charge any person upon any agreement that was not to be performed in one year unless there was some memorandum or note in writing of the agreement" was in force. And the fact that the contract declared on was a parol one, and so within the statute, was one of the matters meant to be relied on by the defendants in the second trial.]

2. A contract where performance is to run through a term of years, but which, by its tenor, may be defeated at any time before the expiration of the term -- ex. gr., a contract to pay for a right to use an invention on a certain boat so much a year during the term of a patent having twelve years yet to run, "if the said boat should so long last," is within the clause of the statute quoted in the preceding paragraph.

In this case, which had become somewhat complicated by several trials below and which had been in this Court on error more than once, and was now returned with a mandate for a venire de novo, the court makes two observations over and above the points above stated as adjudged:

(i) That the secret deliberations of the jury or grounds of their proceedings while engaged in making up their verdict are not competent or admissible evidence of the issues or finding, but that their evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their consideration, and that then the record furnishes the only proper proof of the verdict.

(ii) That where the extrinsic proof of the identity of the cause of action is such that the court must submit the question to the jury as a matter of fact, any other matters in defense or support of the action, as the case may be, should be admitted on the trial under proper instructions.

This was a suit brought in the Supreme Court (the former circuit court) of the District of Columbia to recover damages under a special contract set forth in the declaration.

The contract, in substance, was, that on the 18th of June, 1844, the plaintiffs below, Sickles & Cook, and the Washington,

Page 72 U. S. 581

&c., Steam Packet Company, the defendants, agreed that Sickles & Cook should attach, for use, to a steamboat owned by the company, the Sickles cut-off, a certain patented contrivance which was designed to effect the saving of fuel in the working of steam engines; and that, in consideration thereof, if the said cut-off should effect a saving in the consumption of fuel, the company would use it on their boat during the continuance of the said patent, IF the said boat should last so long, and that they would, for the use of the cut-off, pay to the plaintiffs, weekly, three-fourths of the value of the fuel saved. The patent had, at the date of the alleged contract, yet twelve years to run. The declaration set forth further that it was agreed between the parties that the saving of the fuel caused by the use of the said cut-off should be ascertained by taking two piles of wood of equal quantity and burning one pile without and the other with the use of the cut-off, and thus to ascertain how much longer the boat would run, under the same circumstances, with the use of the cut-off than without, and that the proportion of savings as agreed upon above should be paid by the defendants. It alleged finally that this experiment had been fairly made, and showed a saving of fuel by the use of the cut-off of thirty-four percent

The plaintiffs accordingly claimed the value of three-fourths of the fuel thus saved, between certain dates specified.

The defendants pleaded the general issue.

On the trial, the plaintiffs, to support the issue, gave in evidence the record of a former trial between the same parties on the same contract as alleged, for payments due when the writ in that case was issued, in which trial a verdict and judgment had been rendered in their favor.

The declaration in the record of this former trial contained four counts:

1. A special count on the contract, corresponding in all respects with that set out in the declaration in the present suit.

2. A common count for compensation for the use of the cut-off by the defendants on their boat before that time had and enjoyed, and for such an amount as it was reasonably worth.

Page 72 U. S. 582

3. A common count for money had and received; and

4. A special count on a contract in substance like the first, with the difference hereinafter stated. It recited that in consideration the plaintiffs had before that time attached the said Sickles cut-off to the engine of the defendants' boat, and had agreed that they should have the use of it during the continuance of the patent right, if the boat should last so long, they, the defendants, undertook and agreed to pay the plaintiffs three-fourths of the value of the fuel saved by the use of the cut-off; that a large quantity of the fuel, to-wit, one thousand cords of wood, of the value of $2,500, had been saved, yet the defendants, not regarding their promise &c., have refused &c. The difference between this and the first count consists mainly in the omission of any agreement to ascertain the saving of fuel by the experiment.

To the declaration in this former suit, whose record was thus offered in evidence, the defendants had pleaded the general issue.

It should be here mentioned that this suit had been in this Court before. It was here in 1860. [Footnote 1] On a trial from the result of which the writ of error then came, a record of a former trial had also been offered in evidence, apparently the same offered in the suit to whose result the present writ was taken.

The record offered in that previous trial contained a declaration having two counts upon the contract, with the common counts, a plea of the general issue, a general verdict for the plaintiffs on the entire declaration, and a judgment on the first count -- a count similar to the counts in the declaration in the suit then pending.

Besides this testimony of the contract, the plaintiffs proved on that previous trial the quantity of fuel used in running the boat, and relied upon the rates as settled to determine their demand, and insisted that the defendants were estopped to prove there was no such contract, or to disprove any

Page 72 U. S. 583

one of the averments in the first count of the declaration in the former suit, or to show that no saving of the wood had been effected; or to show that the so-called experiment was not made pursuant to the contract, or was fraudulently made, and was not a true and genuine exponent of the capacity of the said cut-off; or to prove that the said verdict was in fact rendered upon all the testimony and allegations that were submitted to the jury, and was in point of fact rendered, as by the record it purported to have been, upon the issues generally, and not upon the first count specially.

The circuit court adopted these conclusions of the plaintiffs and excluded the testimony offered by the defendants to prove these facts. On the matter's coming here in 1860, by exceptions in that second suit, this Court, in 24 Howard, [Footnote 2] remarked upon the exclusion of this testimony as follows:

"The record produced by the plaintiff showed that the first suit was brought apparently upon the same contract as the second, and that the existence and validity of that contract might have been litigated. But the verdict might have been rendered upon the entire declaration, and without special reference to the first count. It was competent to the defendants to show the state of facts that existed at the trial with a view to ascertain what was the matter decided upon by the verdict of the jury. It may have been that there was no contest in reference to the fairness of the experiment or to its sufficiency to ascertain the premium to be paid for the use of the machine; or it may have been that the plaintiffs abandoned their special counts and recovered upon the general counts. The judgment rendered in that suit, while it remains in force and for the purpose of maintaining its validity, is conclusive of all the facts properly pleaded by the plaintiffs; but when it is presented as testimony in another suit, the inquiry is competent whether the same issue has been tried and settled by it."

Considering, therefore, that the circuit court had erred in holding the Packet Company estopped by the proceedings

Page 72 U. S. 584

in the first suit from any inquiry in respect to the matters in issue, and actually tried in that cause, this Court reversed the judgment given against it, and the case went down for trial a second time -- the trial, namely, after which to present writ of error was taken.

On this new trial, the plaintiffs called several of the jurors who had been empanelled in the former trial to give evidence of the testimony then given and also as to the matters in contest before the court on that trial, the purpose in introducing this extrinsic evidence having been to prove such facts as, in connection with the record, would show that the same contract was in controversy in the second suit and had been conclusively adjudged in their favor. [Many of these jurors, it may be remarked, while stating the particular grounds on which they found the verdict, and speaking of a contract that was before them, did not all speak so definitely as to the terms of the contract as to make it easy to say whether they described such a one as was set forth in the first count or such a one as was set forth in the last count.]

When the plaintiffs rested, the defendants offered a competent witness to prove that the only contract given in evidence on the former trial was by parol, and not reduced to writing, the purpose of this testimony having had obvious reference to a provision of the statute of frauds, in force in the District of Columbia, the words of the statute being:

"That no suit shall be brought to charge any person upon any agreement not to be performed in one year, unless there was some memorandum or note in writing of the agreement,"


The evidence thus offered was objected to and excluded by the court. The defendants offered to prove further that the contract was by parol, and to be performed at the time stated in the declaration, which testimony was also objected to, and excluded, except as to the latter branch. The questions growing out of this exclusion of evidence were now before this Court on a bill of exceptions for review.

Two questions were accordingly raised here:

1. Whether the evidence as above mentioned was rightly excluded;

Page 72 U. S. 585

2. Whether the contract which it was sought to show was in issue in the former suit was now to be regarded as valid, this question being suggested, of course, by the above-quoted section of the statute of frauds.

Page 72 U. S. 590

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