This action was brought by the defendant in error as plaintiff
below against the plaintiff in error, defendant below, to recover a
balance alleged to be due from him to the plaintiff below as its
treasurer. The defendant below denied that any sum was due, and set
up an accord and satisfaction. At the trial, after the plaintiff
rested, the defendant opened his case at length setting forth the
grounds of his defense. After some evidence had been introduced,
including the books of account and the evidence of a witness who
kept those books, a conversation took place between the court and
the defendant respecting the introduction of evidence alleged by
the court to be outside of the statements made in the opening. The
defendant insisted that the evidence offered was within those
statements. A farther conversation resulted in the defendant's
offering to show that all the moneys ever received by him as
treasurer were duly accounted for and paid over. The court held
this to be a mixed proposition of law and fact, and therefore not
to be proved by witnesses or other evidence,
Page 144 U. S. 65
and, having excluded it, charged the jury that the question at
issue was a bookkeeper's puzzle or problem, which must be solved in
favor of the plaintiff although nothing had occurred in the
testimony which reflected in the slightest degree upon the
integrity or honesty or upright conduct of anybody who was
concerned or had at any time been concerned in the transaction.
Held
(1) That under the rule laid down in
Oscanyan v. Arms
Co., 103 U. S. 261, it
was competent for the court if, assuming all the statements and
claims made in the defendant's opening with all explanations and
qualifications to be true, he had no case, to direct a verdict for
the plaintiff, but
(2) That he should have been allowed, especially in view of the
statement that there was no imputation upon his integrity or
honesty, to offer proof to show that he had accounted for and paid
over the money for which he was sued, and that if the proof, when
offered, did not tend in law to establish those facts, it could
have been excluded.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The National Home for Disabled Volunteer Soldiers, a corporation
existing under the laws of the United States, brought this action
against the plaintiff in error in the Supreme Judicial Court of
Massachusetts to recover the sum of $15,000, with interest from
November 20, 1879.
The defendant denied each allegation in the declaration
contained, and also averred that he had paid the plaintiff in full
all sums he ever owed it, due accord and satisfaction having been
made. He filed, in addition, a declaration in setoff, stating that
he was directed by the board of managers and directors of the Home
to act as its treasurer, which it was not his official duty to do;
that he continued to act in that capacity until the expiration of
his term of office as a manager; that
Page 144 U. S. 66
his service as such treasurer was very onerous and responsible,
he having collected, invested, reinvested, taken charge of, and
paid out very large sums of money, in the aggregate more than ten
millions of dollars, and kept the records and accounts and examined
the vouchers thereof, and that he was relieved from that duty and
service at his own request after ceasing to be a member of the
board. He claimed just and proper compensation for his services in
that behalf.
Upon the petition of the defendant, the case was removed for
trial into the circuit court of the United States upon the ground
that the plaintiff was a corporation created by an act of Congress,
and the suit was therefore one arising under the laws of the United
States. 18 Stat. 471, c. 137;
Pacific Railroad Removal
Cases, 115 U. S. 1.
After the removal of the cause, the plaintiff filed an answer to
the declaration in setoff, denying that the defendant had any legal
claim for services as acting treasurer or otherwise and averring
that there never was any agreement or understanding between the
board of managers and the defendant that the latter should receive
compensation for services rendered or to be rendered, or duties
performed or to be performed, by him in connection with the Home;
that no salary or other compensation therefor was ever determined
or fixed by the board, and that the defendant never made any claim
or demand upon the plaintiff for compensation for such services
prior to the filing of his declaration in setoff.
The evidence on behalf of the plaintiff tended to show the
following facts: the defendant, as acting treasurer of the Home,
paid, May 7, 1879, to William S. Tilton, manager of the Eastern
Branch Home, the sum of $15,000, to be used for the purchase of
leather for the manufacture of boots and shoes at the eastern
branch, and charged the same as so paid out in his accounts. In
payment of that advance, Tilton, October 13, 1879, sent to Butler a
sight draft for $9,838, drawn by the latter on his financial agent
and bookkeeper, George J. Carney, payable to the order of Pitkin
& Thomas, and sent by the defendant, as acting treasurer, to
that firm, in payment for clothing furnished by it to the Home.
Pitkin & Thomas endorsed
Page 144 U. S. 67
the draft and delivered it to Tilton in payment of boots and
shoes purchased of him by them. Tilton sent it, together with his
receipt for $5,162, to Carney. The receipt was in these words:
"Togus, Me., Oct. 13th, 1879. Receipt for money this day
received from Gen. B. F. Butler, acting treasurer of the National
Home for Disabled Volunteer Soldiers, $5,162. Williams S. Tilton,
Acting Treasurer."
"The letter to Carney, containing the draft and receipt, was as
follows:"
"Togus, Me., October 13th, 1879"
"Col. George J. Carney, Financial Agent, Lowell, Mass."
"My Dear Col.: The General has requested me to arrange for the
settlement of $15,000, which he loaned me for the purchase of
leather."
I enclose Gen. Butler's draft on you at sight . . . $9,838
And my treasurer's receipt. . . . . . . . . . . . . 5,162
------
$15,000
"The Home owed me a balance of $5,985.81 on the 30th September,
'79; so the above balance (for which I send you regular treasurer's
receipt in duplicate) will go far to wards making us square on the
ordinary Home expenditures."
"WILLIAM S. TILTON,
Acting Treas'r"
Tilton never took up on his regular account with the Home the
receipt of the $15,000 on May 7, 1879, nor entered in that account
the repayment thereof, but entered both transactions in his
"shoe-shop books."
It also appeared in the evidence introduced by the plaintiff
that the $5,162 was never in fact paid to Tilton, but that
subsequently defendant gave Tilton an invoice for that sum, the
same as if it had been paid, and that Tilton took the same up on
his regular account with the Home and accounted for it; that the
defendant's accounts as acting treasurer were rendered quarterly on
the last days of December, March, June, and September, and in those
for the quarter ending December 31, 1879, no credit was given the
Home for the draft and receipt sent by Tilton, but it was therein
charged, under date of November 20, 1879, with the payment to
Pitkin & Thomas of
Page 144 U. S. 68
the sum of $9,838, and the payment to Tilton of the $5,162, and
that, in the defendant's account book, kept by Carney, in
connection with the entry of payment by the defendant, November 20,
1879, of the sums of $9,838 and $5,162 to Pitkin & Thomas and
Tilton, respectively, was the following memorandum in Carney's
writing: "No money passes from G.J.C. to settle these. They offset
an advance to Tilton."
Some letters that passed between the defendant and his successor
in office, Gen. Franklin, were put in evidence, but they need not
be set out.
The court having overruled a motion, made at the close of the
plaintiff's evidence, that a verdict be returned for the defendant,
to which action of the court an exception was taken, the latter
opened his defense with a speech to the jury, occupying nearly ten
pages of the printed record.
The first witness introduced for the defense was Carney, who
kept the accounts of the Home relating to the moneys received by
the defendant as acting treasurer, from some time in 1869 down to
1880. All the entries were in his handwriting. With the accounts
and account books kept by him the defendant never at any time
interfered. In the progress of his examination, numerous rulings as
to evidence were made, to which the defendant excepted. Among other
things, Judge Carpenter, before whom the case was tried, said: "I
take it for granted all along that nothing is offered to be proved
except what has been opened to the jury." To this the defendant
replied, "Yes, sir." The judge then said:
"That being so, I shall instruct them that nothing that has been
offered is relevant, and that nothing that can be offered that does
not go outside of the statement which was made in the opening of
the case is relevant."
Another witness was sworn on behalf of the defendant, when,
according to the bill of exceptions, the following occurred:
"Defendant: Shall I go on further with Mr. Carney on the
question of the bookkeeping? Did I understand your honor to say
that, it appearing on our books we have taken it up and charged it,
we are not at liberty to show that it was accounted for to the
asylum? "
Page 144 U. S. 69
"Court: No; I will repeat it. I should have been understood to
say that if the testimony offered by you, and which was to be
adduced in answer to the question asked by you, whatever it was,
was to establish some allegation or offer of proof made by you in
your opening to the jury, and went no further than that, and did
not undertake to establish any allegation not offered to be proved
by you in your opening to the jury, then in that case it is
irrelevant to the issue, and inadmissible."
"Defendant: I expressly opened to the jury that it had all been
accounted for."
"Court: I did not so understand you."
"Defendant: I did, sir, and said that very account, and will
your honor remember what I said exactly, that it had gone into the
account; that the account had been audited and approved, and not a
cent remained in my hands, as there would have been, or in Mr.
Carney's hands, if there had been this $15,000. I said that."
"Court: I do not think such facts as that amount to a
defense."
"Defendant: What -- that it has been ultimately accounted
for?"
"Court: The statement that it is ultimately accounted for is a
proposition of mixed law and fact."
"Defendant: I want to put in the facts upon that question."
"Court: You are to prove to the jury, and, of course, state in
your opening, the facts which you are to prove. They are not legal
conclusions. Of course, however proper it may be to advert to them
as throwing light upon the nature and manner of the defense, they
are not included in the propositions which you are going to sustain
by proof. Legal conclusions cannot be sustained by proof or
evidence offered in any case."
"Defendant: My proposition is that I did state the fact of
accounting and the fact of paying over. I remember this phrase,
that I paid the balance that was found due from me upon the
accounts to my successor. If that is not opening -- that I paid it
and accounted for it -- I don't know what it is."
"Court: I may, perhaps, be misunderstood. I mean to say
Page 144 U. S. 70
that upon all the statements of fact made in the opening, and
thereby offered to be proved to the jury, assuming them to be true,
there is no defense whatsoever to this action, in my judgment, and
I shall pass upon the questions of testimony in that view, and
shall so instruct the jury."
"Defendant: And will not permit me to come in and show that they
were all accounted for?"
"Court: If you wish to offer any testimony as to matters of fact
beyond and outside of such matters of fact as were opened by you to
the jury, I will hear a statement of what those matters of fact
are, and pass upon them. If there be nothing beyond that which it
is now desired by you to offer, if there be nothing beyond that,
then all parties have the benefit of my distinct ruling that they
are irrelevant, each and all of them, to this issue, and that they
constitute no defense."
"Defendant: I still do not understand, sir. I now propose, may
it please your honor, to offer to show by this witness, who was a
member of the auditing committee of the accounts of the asylum, who
examined all the receipts and all the expenditures and the
vouchers, that all the moneys ever received by me as treasurer,
including these, which were upon the same account, were duly
accounted for, and then, by another witness, that they were paid
over."
"Court: I judge that to be a mixed proposition of law and fact,
and therefore not to be proved by witnesses or other evidence."
"Defendant: In order that I may not be mistaken, I will say that
I offer to prove that these very sums of money here in account were
duly accounted for and paid over."
"Court: Do you propose to prove that by proving any substantive
facts other than those recited by you in your opening to the
jury?"
"Defendant: I have only to say that I did not open every item of
evidence to the jury, as at the end of forty-six years of practice,
I have just learned I ought to. I now presume I ought to have done
so."
"Court: Then it is necessary for you now to state what
substantive
Page 144 U. S. 71
fact you offer to prove which was not recited in your opening to
the jury."
"Defendant: I do not offer any fact except the fact which I
opened to the jury -- that I had accounted for and paid over every
dollar of money, including this money."
"Court: Then I tell you it will be irrelevant to the issue."
"Defendant: Your honor rules that it is irrelevant?"
"Court: That is irrelevant."
"Defendant: I will have to ask your honor to save us an
exception on that."
At a later stage of the trial, the court announced that there
was nothing to be argued except the credibility of the evidence
that had been introduced on behalf of the plaintiff. The conclusion
of the charge to the jury was:
"I need not say to you, gentlemen, that nothing has occurred in
this testimony which in the slightest degree reflects upon the
integrity or honesty or upright conduct of anybody who is
concerned, or who has been at any time concerned, in this
transaction. It is, as I have said, so far as the testimony goes
here, a bookkeeper's puzzle or problem, which, feeling clear what
the right of the matter is, I have judged it was my duty to take
the responsibility of instructing you must be solved in favor of
the plaintiff, the Soldiers' Home."
"Defendant: I want at the proper time, may it please your honor,
to except to everything your honor has said upon the facts to the
jury under our law."
"Court: Very good, sir. I added those observations in the public
interest, and, as the case is confused, in the interest of
gentlemen who are concerned in the case."
"Defendant: I simply take exception."
"Court: I do not retract them. If they be ground of exception,
you have the benefit of it."
The jury returned a verdict in favor of the plaintiff for the
sum of $16,537.
The question raised in this case as to the conduct of the trial
is somewhat similar to that determined in
Oscanyan v. Arms
Co., 103 U. S. 261,
103 U. S.
263-264. That was an action to recover from the
defendant commissions alleged to have been
Page 144 U. S. 72
earned by one Oscanyan under a contract for the sale of fire
arms to the Turkish government. Plaintiff's counsel, as preliminary
to the introduction of testimony, stated to the court and to the
jury the issues in the case and the facts proposed to be proved.
That statement disclosed a contract that was void as being corrupt
in itself and prohibited by morality and public policy. The
defendant thereupon moved the court to direct the jury to render a
verdict in its favor. The plaintiff's counsel having, in response
to a direct inquiry by the court, asserted the truth of the
statement so made by him to the jury, the motion for a verdict in
favor of the defendant was sustained. This Court said that the
power to act in the disposition of a trial upon facts conceded by
counsel is as plain as its power to act upon the evidence produced.
But it further said:
"Of course, in all such proceedings, nothing should be taken,
without full consideration, against the party making the statement
or admission. He should be allowed to explain or qualify it, so far
as the truth will permit; but if, with such explanation and
qualification, it should clearly appear that there could be no
recovery, the court should not hesitate to so declare, and give
such direction as will dispose of the action."
The manner in which the trial below was conducted did not
comport with the spirit of this rule. While as to some matters the
bill of exceptions is obscure, it is clear that the court below was
of opinion that the facts stated by the defendant in his opening to
the jury did not constitute a defense to the action. But this
opinion was based upon the belief that the defendant did not state
that he had accounted for and paid over to the asylum the sums for
which he was sued. When, however, the defendant assured the court
that it was under a misapprehension as to what he had stated, and
that he had claimed in his opening to have fully accounted for and
paid over every dollar of the amount charged against him, he should
have been allowed to introduce proof of such facts. If the proof,
when formally offered, would not have tended in law to establish
those facts, it could have been excluded. Such facts were clearly
admissible under the answer of the defendant, and if they were not
strictly included in the words of his opening
Page 144 U. S. 73
to the jury, it was error under the circumstances to have denied
him the privilege of showing that he had in fact accounted for and
paid over all the moneys for which he was sued. We are the more
inclined to so hold because the court below observed to the jury
that nothing had occurred in the testimony which in the slightest
degree reflected upon the integrity or upright conduct of anyone
who was then or had been concerned at any time in this transaction.
And if, as the court observed, the case was "confused" and the
matter a "bookkeeper's puzzle or problem," there was so much the
more reason why the defendant should have been allowed the benefit
of his assurance that his opening proceeded upon the distinct
ground that he had accounted for and paid over to the asylum the
sums which he was charged to have improperly withheld.
We are of opinion that the case was not fully tried, and as for
that reason it must go back for another trial, we forbear any
expression of opinion upon the questions of law raised by the
record now before us.
The judgment is reversed, with directions to grant a new
trial.
MR. JUSTICE BROWN dissenting.
I am unable to see wherein the court failed to give the
defendant a proper opportunity of putting his case before the jury.
After the plaintiff had rested its case, defendant moved for an
instruction that a verdict be returned in his favor, which was
denied. The defendant thereupon made a long and elaborate opening
to the jury, claiming in substance two defenses: first that he had
duly accounted for the money, and second that he was entitled, by
way of setoff, to compensation for his services as treasurer of the
Home. In support of his first defense, he made a statement of facts
which, as I understand, were not disputed, but which had no
tendency to show that he had duly accounted for the money, and put
a witness upon the stand to give testimony, which the court held
was not relevant to the issue and made out no defense. The court
thereupon ruled that the statement of facts made in the opening to
the jury, assuming them to be true, did not constitute
Page 144 U. S. 74
a defense to the action, and suggested that if the defendant
wished to offer any testimony as to matters of fact beyond and
outside of the opening, he would hear his statement of what those
facts were and pass upon them, but if there were nothing beyond
that which had already been offered, he would hold that they were
irrelevant and constituted no defense. In reply to this, defendant
stated that he proposed to show that the moneys charged against him
were duly accounted for and paid over, and in reply to a suggestion
of the court that he ought to state what substantial facts he
expected to prove which were not recited in his opening, said: "I
do not offer any fact except the fact which I opened to the jury --
that I had accounted for and paid over every dollar of money,
including this money." This the court held, under the facts above
set forth, to be irrelevant, and then stated that the only question
for the jury was as to the credibility of the plaintiff's
testimony.
It was held by this Court in
Oscanyan v. Arms Co. that
where it is shown by the opening statement of the plaintiff's
counsel that he has no case, the court may direct the jury to find
a verdict for the defendant without going into the evidence. I know
of no reason why the same rule should not apply to the defendant
who assumes in his opening to state a defense. If the facts stated
in such opening do not constitute a defense, the court is at
liberty to rule out the evidence, and either direct a verdict for
the plaintiff or submit the case to the jury upon the plaintiff's
testimony. In this case, the defendant offered simply to show that
he had accounted for the money. This was clearly not a statement of
fact, but of a legal conclusion. It was as if, in an action of
ejectment, the defendant should state that he proposed to show that
he had the title to the lands in question; or, in an action for
breach of contract, that he had not broken the contract. In such
case, while the defendant may elect whether to make an opening or
not, if he does not make a statement of facts upon which he relies,
and such facts are not, in the opinion of the court, relevant, I
think the court may properly call upon him to state any further
facts that he intends to prove, and, if he declines
Page 144 U. S. 75
to make a statement other than he has already made, he may
lawfully assume that these constitute his entire defense. The facts
stated by the defendant in this case in support of his defense that
he had accounted for the money were simply calculated to confuse
the jury, without tending in any way to show that he should not be
charged with the sum in controversy.
I am wholly unable to see that any injustice was done to the
defendant upon this trial, and think the judgment should be
affirmed.