1. Where the defendant in error moved to dismiss a writ sued out
by three partners, two of whom had previously received their
discharges in bankruptcy, on the ground that the assignee alone
could prosecute it, the court grants the application of the latter
to be substituted as a plaintiff in error.
2.
Semble that the partner against whom no bankruptcy
proceedings were instituted might have sued out the writ, using, if
necessary, the names of all the parties against whom the judgment
had been rendered.
3. The court reaffirms the ruling in
The
William Bagaley, 5 Wall. 377, that a resident of a
section in rebellion should leave it as soon as practicable and
adhere to the regular established government, and furthermore holds
that one who, abandoning his home, enters the military lines of the
enemy and is in sympathy and cooperation with those who strive by
armed force to overthrow the Union is, during his stay there, an
enemy of the government and liable to be treated as such, both as
to his person and property.
4. When in 1882, at a time when there was no such substantial,
complete, and permanent military occupation and control of Memphis
as has been held
Page 101 U. S. 613
sometimes to draw after it a full measure of protection to
persons and property, and when no pledge had been given which would
prevent the general commanding the forces of the United States from
doing what the laws of war authorized and his personal judgment
sanctioned as necessary for and conducive to the successful
prosecution of the war,
held that he had the right to
collect rents belonging to a citizen who had gone and remained
within the lines of the enemy and hold them subject to such
disposition as might thereafter be made of them by the decisions of
the proper tribunals.
6. A lessee who was dispossessed by the military authorities
under such circumstances and deprived of the use and control of the
demised premises is discharged from liability to his lessor for
rent accruing during the period of such dispossession.
The facts are stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The original decree in the second Chancery Court of Shelby
County, Tennessee, for $8,821.49, was rendered against S. M. Gates,
A. M. Wood, and Milton McKnight, partners under the name of Gates,
Wood, & McKnight, and on appeal to the Supreme Court of
Tennessee, it was, to the extent of $7,840.25, affirmed Oct. 13,
1875. On the 1st of August, 1876, Gates and Wood received
discharges in bankruptcy, releasing them individually from all
provable debts and claims existing against them on the 22d of
April, 1876, other than those which, by law, were excepted from the
operation of such a discharge. The present writ of error was sued
out Oct. 30, 1876, by all the partners. The defendant in error now
moves to dismiss it, upon the assumption that the assignee in
bankruptcy could alone prosecute it. Undoubtedly, the assignee had
the right to prosecute that writ so far, at least, as it concerned
those whom he represented. If the bankrupts could not themselves,
under any circumstances, properly sue it out after their discharge
(and upon the question we express no opinion), all difficulty in
that respect has been removed by the application of the assignee
for an order here substituting him as a plaintiff in error. His
application is now granted, and he is allowed to prosecute the writ
in behalf of the bankrupts. Independently, however, of that
Page 101 U. S. 614
application, we are not prepared to say that McKnight, the
partner against whom no bankruptcy proceedings were instituted,
might not have sued out the writ, using for that purpose, if
necessary, the names of all the parties against whom the original
decree was rendered. With both the assignee in bankruptcy and
McKnight before the court, there is no sound reason why the cause
should not proceed to a final determination upon the errors
assigned.
Coming, then, to the merits of the case, we find that the
original plaintiffs in error specially claimed a right or immunity
in virtue of an authority exercised under the United States. The
right or immunity, so claimed, was denied first in the court in
which the suit originated, and subsequently in the Supreme Court of
the State of Tennessee.
The facts upon which that claim rests, or out of which it
arises, are briefly these:
On the 6th of June, 1862, military possession was taken of the
City of Memphis by the Union forces then engaged in suppressing
armed insurrection against the national authority. During the
succeeding month General Sherman, having been previously assigned
by competent military authority to the command of the district of
West Tennessee, reached that city with reinforcements, and assumed
control of the forces in that locality.
Shortly thereafter, he published orders reopening trade and
communication with the surrounding country and prescribing rules in
conformity with which travel in and out of the city should be
conducted. On the 7th of August, 1862, pursuant to orders from
General Grant, his superior officer, specific instructions were
issued by him to the quartermaster in charge at Memphis, concerning
vacant stores and houses in that city, and also as to buildings
which were occupied, but the owners of which had "gone South,"
leaving agents to collect rent for their benefit. With reference to
the latter class of buildings, his instructions, or rather orders,
were:
"Rent must be paid to the quartermaster. No agent can collect
and remit money South without subjecting himself to arrest and
trial for aiding and abetting the public enemy."
The object of these regulations was thus distinctly set forth by
General Sherman in his letter of instructions:
"I understand
Page 101 U. S. 615
that General Grant takes the rents and profits of this class of
real property, under the rules and laws of war and not under the
Confiscation Act of Congress; therefore the question of title is
not involved -- simply the possession -- and the rents and profits
of houses belonging to our enemies which are not vacant we hold in
trust for them or the government, according to the future decision
of the proper tribunals."
He concluded his letter in these words:
"We have nothing to do with confiscation. We only deal with
possession, and therefore the necessity of a strict accountability,
because the United States assumes the place of trustee, and must
account to the rightful owner for his property, rents, and profits.
In due season, courts will be established to execute the laws, the
Confiscation Act included, when we will be relieved of this duty
and trust. Until that time, every opportunity should be given to
the wavering and disloyal to return to their allegiance to the
Constitution of their birth or adoption."
These instructions do not appear in the present transcript,
although they constitute a part of the archives of the War
Department and belong to the public history of the late civil war.
Some question may be made as to our right to take judicial notice
of them in the determination of this case. But apart from them the
record sufficiently establishes the fact that the military
authorities adopted the general policy indicated by General
Sherman's letter of instructions, and a rental agent, designated by
those authorities, was charged with the duty, among others, of
collecting rents of houses which, although occupied, belonged to
persons who had "gone South." To that class of property belonged a
storehouse occupied by Gates, Wood, & McKnight, under a lease
executed at Memphis in 1859 by R. C. Brinkley, the testator of
defendant in error, for a term of five years, and for the
stipulated rent of which the lessees had executed their several
promissory notes, payable quarterly during the whole period of the
lease. Brinkley, upon the approach of the Union forces, left his
home in Memphis and went within the lines of the Confederate
forces, where he remained until 1864.
Gates, Wood, & McKnight were notified by the military rental
agent, in the summer of 1862, to pay him the rents going
Page 101 U. S. 616
to Brinkley. They refused to recognize that order or to so pay
the rents, and by reason of such refusal were dispossessed by the
military authorities. Those of their sub-tenants who expressed a
willingness to comply with the order were permitted to remain in
the occupancy of the premises, paying rent, however, directly to
the rental agent of the United States. From the time the lessees
were thus dispossessed until July 11, 1863, the property remained
under Federal military control, and all rents arising therefrom
were collected by the rental agent, who, in the exercise of his
functions, was recognized and sustained by the general commanding
the Union forces in that district. During that intermediate period,
the lessees were neither in possession of the premises nor
permitted by the military authorities to receive any rents accruing
therefrom. Their rent notes, covering the period during which they
were thus kept out of possession, remained, however, outstanding in
the hands of the lessor or his agent. They constitute the
foundation of the judgment or decree in this suit.
Are the lessees liable to the estate of Brinkley for rent, as
stipulated in the lease of 1859, for the period when the storehouse
was under control of the Federal military? There is no claim here
for rents subsequent to July 11, 1863, since, on that day,
possession was delivered or control surrendered to the lessor's son
under an arrangement made by him with the military authorities.
After the return of the lessor to Memphis in 1864, the latter took
control of the property and enjoyed the rents. Upon the solution of
the foregoing question this case depends.
The Supreme Court of Tennessee was of opinion that the lessees
were not discharged from liability upon their contract with
Brinkley by reason of the action taken by the military authorities
touching the rents accruing from the property in question. That
court recognized the hardship of the case upon the lessees, but
consistently with its views of the law the relief asked for could
not be given.
We are unable to give our assent to the conclusion reached by
that learned court. It is inconsistent with our decision in
Harrison v. Myers, 92 U. S. 111, where
we held that the lessee was discharged from liability to the lessor
for rent of certain
Page 101 U. S. 617
property in New Orleans during the period when the rents and
profits arising therefrom were required by the federal military
authorities, occupying and controlling that city in the year 1862,
to be paid directly to them. There is some difference in the facts
of the two cases, but in their essential features they are alike.
That case, it may be here observed, was determined in this Court
after the rendition of the present decree by the Supreme Court of
Tennessee.
Brinkley, in his answer, claims to have gone within the
insurrectionary lines as a private citizen and upon private
business. He testified that he "never had the honor to go or act in
any other capacity, then, before, or since." It was, however, shown
that in 1861, he became a member of a military board organized in
hostility to the United States. It does not appear when his
connection with that body terminated or when the board itself
ceased operations. But it does appear from his own admissions that
he had, prior to the occupation of Memphis by the Union forces,
contributed money towards the equipment of military companies
organized in that state with the avowed purpose of resisting the
authority of the national government. When he abandoned his home
and entered the military lines of the enemy, he was, beyond
question, in full sympathy and active cooperation with those who
sought by armed force to overthrow the Union. Neither in his answer
nor in his deposition does he intimate that he had any sympathy
with the United States in its efforts to suppress insurrection. He
was therefore, in the very fullest legal sense, an enemy of the
government during his stay within the military lines of the
rebellion, liable to be treated as such both as to his person and
property. His remaining there was in plain violation of law and in
disregard of duty. In
The William
Bagaley, 5 Wall. 377, we said that
"it was the duty of a citizen when war breaks out, if it be a
foreign war and he is abroad, to return without delay, and if it be
a civil war, and he is a resident in the rebellious section, he
should leave it as soon as practicable and adhere to the regular
established government."
The general commanding the Union forces at Memphis was charged
with the duty of suppressing rebellion by all the means which the
usages of modern warfare permitted. To that end,
Page 101 U. S. 618
he represented for the time, and in that locality, the military
power of the nation. He did not assume authority to confiscate
Brinkley's rents, nor did he seize them as booty of war, but, by
his subordinates, collected and held them subject to such
disposition as might be thereafter made of them by the decisions of
the proper tribunals. They were seized,
flagrante bello,
in that portion of the territory of the United States the
inhabitants whereof had been declared to be in insurrection. There
was no such "substantial, complete, and permanent military
occupation and control" as has been sometimes held to draw after it
a full measure of protection to persons and property at the place
of military operations. 16 Wall.
83 U. S. 495.
No pledge had then been given by the constituted authorities of the
government which prevented the commander of the Union forces from
doing all that the laws of war authorized and that, in his judgment
under the circumstances attending his situation was necessary or
conducive to the successful prosecution of the war. He was not
bound to risk the possibility of Brinkley's rents' being
transmitted to him beyond the Union lines. To have permitted the
latter to enjoy the benefit of them in any form during his
voluntary absence within the military lines of the insurrection
might have encouraged him to remain under the protection of the
enemy, adding by his presence and means to the enemy's ability to
continue the struggle against the government. If, therefore, in the
judgment of the commanding general, the security of his own army or
the diminution of the enemy's resources required that he should
prevent those within the Confederate military lines from receiving
or using in any way while there rents accruing from real estate
within the federal lines, it would be difficult to show that the
mode adopted by him to effect that result was not a proper military
precaution, entirely consistent with the established rules of war
and having direct connection with the great end sought to be
accomplished by the war, to-wit the destruction of armed rebellion
and the complete restoration of the national authority over the
insurrectionary district.
The action of the military authorities in seizing the rents
arising from the property which Brinkley had leased to Gates, Wood
& McKnight not being then in violation of law -- that
Page 101 U. S. 619
which was done being regarded as having been done by the
authority of the United States in lawful defense of the national
existence against armed insurrection -- it results necessarily, as
we think, that the lessees, when dispossessed by military authority
and deprived of all future use and control of the leased property,
were discharged from liability to the lessors for rent accruing
during at least the period of such dispossession. They were not
discharged from liability for rent which had previously accrued.
But since the consideration for their promise to pay rent from time
to time was the possession and use of the leased property during
the term and upon the conditions specified in the lease, and since
such enjoyment and use were materially interrupted and prevented by
the interference of the law or of lawful public authority, to which
both parties were amenable, the lessees, it seems to the Court,
ought to be protected against liability for the rent stipulated in
the contract of 1859, for the period they were thus kept out of
possession and enjoyment of the property. The events and
contingencies causing that result were not such as the parties
anticipated nor such as we can suppose were in contemplation when
the contract was made. Otherwise they would, it must be assumed,
have been provided for in the contract.
The conclusion thus reached is abundantly sustained by
authority. Indeed, many of the authorities would justify us in
holding the action of the military authorities to have worked the
dissolution of the entire contract of lease from the moment the
lessees were dispossessed.
In
Melville v. De Wolf, 4 El. & Bl. 844, the
plaintiff sued for wages agreed to be paid to him as a mariner and
carpenter on board of a foreign ship going to the Pacific Ocean. In
the course of the voyage, complaint was made to a British consul,
at a foreign port, of an offense alleged to have been committed by
the master of the ship. The consul, in pursuance of a British
statute and having power and jurisdiction so to do, caused the
master to be conveyed to England under restraint to be there
proceeded against in respect of the offense charged, and the
consul, having power and jurisdiction so to do, caused the
plaintiff to leave the ship and proceed to England as a witness.
The latter did not return to the ship or render any further
Page 101 U. S. 620
services thereon for the defendant. The question in the case was
as to the liability of the defendant for wages according to the
articles signed for the period subsequent to the departure of the
plaintiff for England under the direction or order of the consul.
The Court of Queen's Bench, speaking by Lord Campbell, C.J.,
said:
"The money paid into court covered the plaintiff's demand for
wages during the whole time that he had served on board the ship,
and we think that upon the facts proved, the ship owners were not
liable to pay him wages for a longer period. By authority of the
British legislature, he was then separated from the ship at a
foreign port and sent to England, without any reasonable
possibility of his ever being able to rejoin the ship during the
voyage in which he was engaged. No blame is to be imputed to him,
and there has been no forfeiture of wages, but he cannot be
considered as having earned the wages in dispute. After he was sent
home from Montevideo to England, he neither served under the
articles actually or constructively, and as from that time the
relation of employer and employed could not be renewed within the
scope of the original hiring, we think that the contract must then
be considered as dissolved by the supreme authority of the state,
which is binding on both parties."
Again
"Then, an act being done by public authority which rendered any
further performance of the contract impossible, we think that the
contract was dissolved."
Exposito v. Bowden, 7
id. 763, has some
bearing upon the question. Bowden, a British subject, contracted to
make a voyage to Odessa, a Russian port, and bring from there goods
belonging to the other contracting party. Before the voyage was
completed, war between England and Russia intervened. Bowden
thereupon declined to execute the contract, and was sued for
damages for failing to do so. The Court of Queen's Bench said:
"As to the mode of operation of war upon contracts of
affreightment made before, but which remain unexecuted at the time
it is declared, and of which it makes the further execution
unlawful and impossible, the authorities establish that the effect
is to dissolve the contract and to so absolve both parties from
further performance of it."
The same doctrine was announced in
Barker v.
Hodgson,
Page 101 U. S. 621
3 Moo. & S. 267, where Lord Ellenborough said:
"If indeed the performance of this covenant has been rendered
unlawful by the government of this country, the contract would have
been dissolved on both sides, and this defendant, inasmuch as he
has thus been compelled to abandon his contract, would have been
excused for the nonperformance of it, and not liable in
damages."
In his treatise on the law relative to merchant ships and
shipping, 11th ed., by Shee, 453, Lord Tenterden says:
"If an agreement be made to do an act lawful at the time of such
agreement, but afterwards, and before the performance of the act,
the performance be rendered unlawful by the government of the
country, the agreement is absolutely dissolved."
To the same effect speak Chancellor Kent, 3 Kent 248, and Mr.
Chitty. Chit.Contr. (11th Am. ed.) 1077. The last-named author
says: "So the nonperformance of a contract will be excused where
such nonperformance is occasioned by an act done by public
authority."
Further citation of authorities would seem to be unnecessary.
The reasons assigned in the adjudged cases and by elementary
writers in support of the principles announced in the foregoing
authorities apply to this case, and should control its
determination. The lessees having been permanently deprived, by
competent public authority, of the possession of the leased
property, the use of which was the sole consideration for the notes
sued on, they were discharged from liability upon the notes, which
represented the rents accruing during the period of military
occupancy and control.
The decree of the Supreme Court of Tennessee will be reversed
with directions to enter or to cause to be entered in the proper
court a decree of perpetual injunction in accordance with the
principles of this opinion, and it is
So ordered.