A judgment for an alien enemy is objectionable only in so far as
it may give aid and comfort to the other side in the war. P.
251 U. S.
A judgment recovered in the district court by an alien enemy
before he became such, the satisfaction of which was delayed by the
other party's appeal until the intervention of war, may properly be
reviewed during the war and affirmed with direction that the money
be paid to the clerk of the trial court to be turned over to the
Alien Property Custodian, and a motion to dismiss or suspend the
action is correctly denied. Id.
Where a broker who became liable for his principal on several
arbitration awards sued for their aggregate amount and was given a
directed verdict and a judgment against the principal for the part
Page 251 U. S. 318
had then paid, and, having paid the remainder, sued again to
recover that also, held
that the former judgment was
conclusive in the second action as to the validity of the awards,
it appearing not only from the petition and judgment, but from
other parts of the record of the former case, including the answer,
the judge's charge and the opinion of the circuit court of appeals,
that the validity of all the awards alike was there in issue and
was sustained. P. 251 U. S.
In determining whether a former judgment, given upon a directed
verdict, involved the same issues of fact as are presented in a
second action before the same judge in which both parties submit
the point by requests for a peremptory instruction, especial weight
attaches to the judge's decision. P. 251 U. S.
The objection that the deposition of a plaintiff in the district
court cannot be taken on his own behalf is waived by a stipulation
waiving time and notice and allowing the officer to proceed to take
and return it on interrogatories. Id.
That, in the return of foreign depositions, the officer
commissioned did not put them into the mail and certify to the fact
on the envelopes, as required by a state law, is immaterial where
the war made compliance impossible and where the officer
transmitted them in the only practicable way, though an American
consul to the State Department, and thence by mail to the clerk.
The six months' limitation of the German Civil Code § 477 on
claims for defect of quality in goods sold does not apply to awards
of arbitration based on such claims. P. 251 U. S.
In an action to recover amounts paid on defendant's account in
Germany, it is not error to take the value of the German mark at
par in the absence of evidence that it had depreciated when the
plaintiff made the payments. Id.
248 F. 636 affirmed.
The case is stated in the opinion.
Page 251 U. S. 322
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit by Heye, a cotton broker in Bremen, against the
petitioner, a cotton exporter in Texas, to recover sums that Heye
had to pay on its account. The payments were made upon cotton sold
by Heye, as the petitioner's agent, to different buyers for alleged
failure of the cotton to correspond to the description upon which
the price was based. In pursuance of the contracts and the rules of
the Bremen Cotton Exchange, the claims of the buyers were submitted
to arbitration, which resulted in awards against the plaintiff for
a total of 312,749.30 German marks, alleged to be equal to about
$74,820.52. Before the present suit was brought, another one had
been carried to judgment in the same District, in which that amount
was claimed. At that time, Heye had paid only $36,610.96 of the
awards. The judge directed a verdict for the sum that the plaintiff
had paid and another item not now in issue. Heye now has paid the
whole, and brings this suit to recover the amount of the later
payment not embraced in the former judgment. He prevailed in the
district court, and the judgment was affirmed with a modification
as to payment by the circuit court of appeals. 248 F. 636. The main
question on the merits is whether the former judgment was
conclusive as to the validity of the awards, but that upon which
the certiorari was granted was a preliminary one, as is shown by
the fact that certiorari was denied in the former suit. 234 U.S.
759. After the case had been
Page 251 U. S. 323
taken to the circuit court of appeals, a motion was made to
dismiss or suspend the suit on the ground that Heye had become an
alien enemy by reason of the declaration of war between Germany and
the United States. The circuit court of appeals, however, affirmed
the judgment with the modification that it should be paid to the
clerk of the trial court and by him turned over to the Alien
Property Custodian, with further details not material here.
Upon the last-mentioned question, although it seemed proper that
it should be set at rest, we can feel no doubt. The plaintiff had
got his judgment before war was declared, and the defendant, the
petitioner, had delayed the collection of it by taking the case up.
Such a case was disposed of without discussion by Chief Justice
Marshall speaking for the Court in Owens v.
9 Cranch 180; Kershaw v. Kelsey,
100 Mass. 561, 564. There is nothing "mysteriously noxious"
(Coolidge v. Inglee,
13 Mass. 26, 37) in a judgment for an
alien enemy. Objection to it in these days goes only so far as it
would give aid and comfort to the other side. Hanger v.
6 Wall. 532, 73 U. S. 536
Such aid and comfort were prevented by the provision that the sum
recovered should be paid over to the Alien Property Custodian, and
the judgment in this respect was correct. When the alien enemy is
defendant, justice to him may require the suspension of the case.
Watts, Watts & Co. v. Unione Austriaca di Navigazione,
248 U. S. 9
248 U. S. 22
On the merits, the first question is whether the former judgment
was conclusive as to the validity of the awards, assuming them to
have been identified as the same that were sued upon in the former
case. Taking merely the former declaration and judgment, it could
not be said with certainty that some of the awards might not have
been held invalid and that the defendant had not satisfied the
Page 251 U. S. 324
whole obligation found to exist. But we have before us the fact
that the Court directed a verdict and the charge. From the latter,
as also from the answer, apart from a general denial, it appears
that the awards were dealt with as a whole, and that the objections
to them were general. The objections were overruled, and the Court
assumed that the awards were obligatory, but cut down the amount to
be recovered to the sum that had been paid. The case went to the
circuit court of appeals, and the same things appear in the report
of the case there. 212 F. 112. (Certiorari denied, 234 U.S. 759.)
In the present case, both parties moved the Court to direct a
verdict. Beuttell v. Magone, 157 U.
, 157 U. S. 157
Empire state Cattle Co. v. Atchison, Topeka & Santa Fe Ry.
Co., 210 U. S. 1
210 U. S. 8
Taking that and the fact that the same judge seems to have presided
in both suits into account, we should be slow to disturb his
decision that the issue was determined in the former one if we felt
more doubt than we do. But we are satisfied the decision of the two
courts below was right.
We shall deal summarily with two or three highly technical
arguments urged against the affirmation of the judgment. One is
that the depositions of Heye and a witness were not returned as
required by the Texas statute providing for taking them, with a
suggestion that, as Heye was a party, his deposition could not be
taken at all. As to the latter point, it is to be noticed that it
did not present an attempt to fish for information from the
opposite party, and that an agreement was made that "time notice
and copy are hereby waived," and that
"the officer may proceed to take and return the depositions of
the witness on the original direct and cross interrogatories, but
commission is not waived."
Whatever may be the general rule (as to which, see Blood v.
140 F. 918), we think that this objection is not
fairly open. As to the mode of return not having followed strictly,
Page 251 U. S. 325
statute, because the officer to whom the commission was directed
did not put the depositions into the mail and certify on the
envelopes that he had done so, a sufficient answer is that that
course was impossible owing to the war, and that the officer did
transmit the depositions in the only practicable way. He gave them
to an American consul and had them transmitted to the Department of
State, and then through the mail to the clerk. The integrity of the
depositions is not questioned, the statute was complied with in
substance, and justice is not to be defeated now by a matter of the
We see no error in the finding that § 477 of the German Civil
Code did not bar the claim. Assuming the question to be open, the
court was warranted in finding that a six months' limitation to
claims for defect of quality did not apply where the claims had
been submitted to arbitration and passed upon. The same is true
with regard to the taking the value of the German mark at par in
the absence of evidence that it had depreciated at the time of the
plaintiff's payments. On the whole case, our conclusion is that the
judgment should be affirmed.