United States v. Jones, 33 U.S. 387 (1834)

U.S. Supreme Court

United States v. Jones, 33 U.S. 8 Pet. 387 387 (1834) United States v. Jones

33 U.S. (8 Pet.) 387

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE COUNTY OF WASHINGTON IN THE DISTRICT OF COLUMBIA

Syllabus

0. made a contract with the government to supply the troops of the United States with rations within a certain district, and executed a bond and contract agreeably to the usages of the War Department. The United States brought an action against O. on the bond, and gave in evidence the contract annexed to the bond and a Treasury statement which showed a balance against O. The United States also gave in evidence another transcript to prove that O., under a previous account, had been paid a balance of $19,149.01, stated to be due to him, which was paid to his agent, under a power of attorney, and the receipt for the same endorsed on the back of the account. The circuit court instructed the jury that the second transcript was not evidence per se to establish the items charged to O.

Held that there was no error in this instruction.

The counsel for the United States also gave in evidence the power of attorney to R. Smith, and his receipt, proved by Smith, that the money received by him under the said power of attorney was applied to the credit of 0. in the Bank of the United States at Washington, which payment the witness supposed was made known to 0., though he could not speak positively on the subject, as he did not communicate the information to him And the counsel who offered this evidence stated that be offered it to show that the accounts between O. and the government, under the contract of 15 January, 1817, had been settled up, to that time, and that the balance of $19,149.01 had been paid to Smith as the agent of O., and that he offered the evidence for no other purpose. The counsel for the United Slates then gave in evidence to the jury a subsequent account between O. and the government under the contract. And on the prayer of the defendant the circuit court instructed the jury

"that the said accounts were not competent per se upon which to charge the defendant or his intestate for any sums therein contained further than the mere payment of money from the Treasury to the said intestate or to his authorized agent."

By the Court:

"The items embraced by this instruction were charges made against O. for the acts of certain persons alleged to be his agents, without annexing to the transcript copies of any papers showing their agency or offering any proof that they acted under the authority of 0.; the circuit court therefore properly instructed the jury that the transcript, per se, did not prove these items."

The plaintiffs then proved by R.S. that he received, as the agent of 0. $6,350.99 on warrant No. 5471 under the contract, and that the same was applied to the credit of 0. in the Bank of the United States at Washington, of which payment the witness believed O. had notice. The counsel for the plaintiffs stated that they confined their claim to the above item, which was the first one charged

Page 33 U. S. 388

in the Treasury account exhibited. The counsel for the defendant then moved the court to instruct the jury that this account, as also the preceding one offered in evidence by the plaintiffs, was evidence for the defendant for the items of credits contained in either, and that in claiming them, he did not admit the debits, which instruction was given by the court and to which an exception was taken.

By the Court:

"This instruction involves the same question which has already been decided between the same parties at the present term. There was no error in giving the instruction."

In the further progress of the trial, the plaintiffs offered to withdraw from the jury the said two accounts mentioned in the preceding exception and all the evidence connected with said accounts, to which the defendant's counsel objected, and the court refused the motion.

By the Court:

"A Treasury account which contains credits as well as debits is evidence for the defendant as well as the government, and unless there be an abandonment of the suit by the counsel for the government, it has no right to withdraw from the jury any part of the credits relied on by the defendant."

The circuit court, on the prayer of the defendant, instructed the jury that the transcript from the books and proceedings of the Treasury can only be regarded as establishing such of the items of debit in the account stated in the said transcripts as are for moneys disbursed through the ordinary channels of the Treasury Department, where the transactions are shown by its books and where the officers of the department must have had official knowledge of the facts stated, but that the transcript is evidence for the defendant of the full amount of the credits therein stated, and that, by relying on the said transcript as evidence of such credits, the defendant does not admit the correctness of any of the debits in the said account, of which the transcript is not per se evidence, and that the said transcript is not per se evidence of any of the items of debit therein stated, except the first.

By the Court:

"The correctness of the principle laid down by the circuit court in this instruction has been recognized by this Court in a case between the same parties at the present term."

This was an action of debt instituted by the plaintiffs in error against the defendant's intestate Benjamin G. Orr and two others on a joint and several bond to the United States dated 15 January, 1817, in the penalty of $40,000, conditioned that the intestate, Orr, should fulfill certain articles of agreement of the same date, made between the Acting Secretary of War and the intestate, by which the intestate agreed to supply the rations required for the use of the United States troops within the limits of the States of South Carolina and Georgia from 1 June, 1817, to 31 May, 1818, inclusive.

Page 33 U. S. 389

The defendant, after oyer of the bond and condition and of the articles of agreement, pleaded performance according to the true intent and meaning of the condition of the bond.

The plaintiffs replied that the said Benjamin G. Orr did not well and truly perform and fulfill the covenants and agreements comprised and mentioned in the articles of agreement referred to in the said condition of the said writing obligatory, but broke the said covenants and agreements in the following instances, to-wit:

That although the said United States did advance and furnish to the said Benjamin G. Orr divers large sums of money at divers times on account of and to enable him, the said Benjamin, to carry into effect the said articles of agreement, which said several sums of money amounted altogether to the sum of $109,500, and although the accounts of the said Benjamin G. Orr in relation to the articles of agreement aforesaid have been duly and finally settled by the accounting officers of the government of the United States, and upon the said settlement there was found to be due to the United States from the said Benjamin the sum of $2,012.33, of which the said Benjamin had due notice, yet the said Benjamin altogether failed to pay to the United States the said sum of money or any part thereof, and the same remains still due and unpaid to the said United States.

The defendant rejoined that the said Orr did not break the condition in manner or form, and upon these pleadings issue was joined. In December, 1831, the cause was tried, and a verdict, under the charge of the court, was rendered for the plaintiff, upon which judgment was entered.

On the trial of the cause, the counsel for the United States gave in evidence the bond executed by the said Orr, with the condition thereto annexed, dated 15 January, 1817, a contract between the said Orr and George Graham, Acting Secretary of War, for the supply and issue of all the rations for the use of the troops of the United States within the limits of the States of South Carolina and Georgia, including that part of the Creek lands lying within the territorial limits of Georgia, thirty days notice being given of the post or place where rations may be wanted or the number of troops to be furnished on

Page 33 U. S. 390

their march from 1 June, 1817, until 31 May, 1828 inclusive, for prices fixed in the contract, and an account current stated and settled by the accounting officers of the Treasury between the United States and the defendant's intestate on 19 August, 1820, upon which a balance was due, amounting to $2,012.30.

The plaintiffs' counsel also gave in evidence a previous account, dated May 11, 1819, stated by the proper accounting officers of the Treasury, for the purpose of proving that the balance of $19,149.01 which appeared to be due to him had been paid to him or his agent, and produced the power of attorney and the receipt on the back of the said account.

Annexed to the transcript from the Treasury containing the account, was the following letter.

"Washington, 6 May, 1819"

"Sir: I will thank _____ to pay to R. Smith, Esq., any sum which may be found due me on my late Georgia contract to the amount of, or within the limit of $25,000, which will cover the interest which has accrued upon the drafts heretofore conditionally accepted of, as well as the principal, and oblige,"

"Yours, &c."

"BENJAMIN G. ORR"

"To the Honorable the secretary at War, or person acting for him"

On the back of the transcript was the following receipt.

"Received, May 14, 1819, warrant numbered 3944, for $19,149 01, in full of the within account."

Among other debits in the account were the following:

"1817. To account transferred from the books of the second auditor, for this sum, standing to his debit on those of this office -- $15,000."

"1817. Sept. 19, for warrant No. 972, for payment of his draft, favor R. Smith, dated 22 July, 1817, on account of do. -- $20,000."

"1817. Nov. 6, for warrant No. 1219, for payment of his draft, favor R. Smith, dated 20 September, 1817, on account of do. -- $12,000. "

Page 33 U. S. 391

"1819. May 14, to warrant of the Treasurer, No. 3944, for this sum, paid R. Smith, per order of B. G. Orr -- $19,149 01."

And the defendant thereupon prayed the court that the said account last mentioned, was not evidence per se that certain charges in said account were correctly chargeable to the said contractor, which opinion the court gave, to which opinion the counsel for the plaintiffs excepted.

The court charged the jury that the accounts produced in evidence by the United States was evidence for the defendant of all the items of credit therein contained, and that the defendant, by referring to and relying on them as evidence for that purpose, did not admit the correctness of any of the debits therein of which the account was not per se evidence, nor make the same evidence before the jury.

To these instructions the plaintiffs excepted.

The plaintiffs prosecuted this writ of error.

Page 33 U. S. 394

MR. JUSTICE McLEAN delivered the opinion of the Court.

This suit was originally brought by the plaintiffs against Benjamin G. Orr, who has since deceased, in the Circuit Court of the United States for the District of Columbia to recover the balance of a Treasury settlement charged against him on the books of the Treasury Department. At the trial, several exceptions

Page 33 U. S. 395

were taken to the instruction of the court to the jury, and those exceptions are brought before this Court for its decision by a writ of error.

On 15 January, 1817, Orr made a contract with the government to supply the troops of the United States with rations, &c., within a certain district, and executed a bond and contract agreeably to the usages of the War Department in such cases.

The action was brought upon the bond, and at the trial the plaintiffs gave in evidence the contract annexed to the bond and a Treasury statement which showed a balance against Orr of $2,012.32.

And the plaintiffs also gave in evidence another transcript in order to prove that Orr, under a previous account with the United States, had been paid a balance of $19,149.01, stated to be due to him, which was paid to his agent, under a power of attorney, and the receipt for the same was endorsed on the back of the account. And the court, on the prayer of the defendant, instructed the jury that this second transcript was not evidence per se to establish all the items charged to the defendant, to which instruction the plaintiffs excepted.

The item principally objected to was paid to Richard Smith as the agent of Orr. In proof of this agency, the following letter was relied on, and which was annexed to the transcript.

"Washington, 6 May, 1819"

"Sir: I will thank ___ to pay to R. Smith, Esquire, any sum which may be found due me on my late Georgia contract to the amount of or within the limit of $25,500, which will cover the interest which has accrued upon the drafts heretofore conditionally accepted of, as well as the principal, and oblige yours, &c."

Signed "Benjamin G. Orr," and directed to the Secretary of War.

On the back of the transcript was endorsed the following receipt,

"Received, May 4, 1819, warrant numbered 3944, for $19,149.01, in full of the within account. Signed, Richard Smith."

Orr's contract commenced on 1 June, 1817, and terminated on 31 May, 1818.

Page 33 U. S. 396

It appears therefore that at the time the above order was given to Smith, the contract of Orr had expired nearly a year. The order requested the Secretary of War to pay any sum that might be due on the contract, not exceeding a specified amount. Under this authority, the government could not pay to Smith, so as to charge Orr, a larger sum than was due on his contract. It was neither the expectation of Smith to receive nor the intention of Orr to pay a greater amount than was due on his contract, and for any payment beyond this the government must look to the agent, and not to Orr, for repayment.

It therefore appears that the circuit court did not err in its instruction above stated to the jury.

The counsel for the United States, in addition to the above transcript, the power of attorney to Smith, and his receipt, proved by Smith that the money received by him under the said power of attorney was applied to the credit of Orr in the Bank of the United States at Washington, which payment the witness supposed was made known to Orr, though he could not speak positively on the subject, as he did not communicate the information to him.

And the counsel who offered this evidence stated that he offered it to show that the accounts between Orr and the government under the contract of 15 January, 1817, had been settled up to that time, and that the balance of $19,149.01 had been paid to Smith as the agent of Orr, and that he offered the evidence for no other purpose.

The counsel for the United States then gave in evidence to the jury a subsequent account between Orr and the government under the above contract. And on the prayer of the defendant the court instructed the jury

"That the said accounts were not competent per se upon which to charge the defendant or his intestate for any sums therein contained further than the mere payment of money from the Treasury to the said intestate or to his authorized agent."

The items embraced by this instruction were charges made against Orr for the acts of certain persons alleged to be his agents, without annexing to the transcript copies of any papers showing their agency or offering any proof that they acted under the authority of Orr; the circuit court therefore properly

Page 33 U. S. 397

instructed the jury that the transcript per se did not prove these items.

The plaintiffs then proved by Richard Smith that he received, as the agent of Orr, $6,350.99 on warrant No. 5471 under the contract, and that the same was applied to the credit of Orr in the Bank of the United States at Washington, of which payment the witness believed Orr had notice.

The counsel for the plaintiffs stated, that they confined their claim to the above item, which was the first one charged in the Treasury account marked A. And the counsel for the defendant then moved the court to instruct the jury that this account, as also the preceding one offered in evidence by the plaintiffs, was evidence for the defendant for the items of credits contained in either, and that in claiming them, he did not admit the debits, which instruction was given by the court, and to which an exception was taken.

This instruction involves the same question which has already been decided between the same parties at the present term. There was no error in giving the instruction.

In the further progress of the trial, the plaintiffs offered to withdraw from the jury the said two accounts mentioned in the preceding exception, and all the evidence connected with said accounts, to which the defendant's counsel objected, and the court refused the motion.

A Treasury account which contains credits as well as debits is evidence for the defendant as well as government, and unless there be an abandonment of the suit by the counsel for the government, it has no right to withdraw from the jury any part of the credits relied on by the defendant.

The next and last instruction given by the court on the prayer of the defendant and to which the plaintiffs excepted was

"That the said transcript A, from the books and proceedings of the Treasury, can only be regarded as establishing such of the items of debit in the account stated in the said transcript as are for moneys disbursed through the ordinary channels of the Treasury Department, where the transactions are shown by its books and where the officers of the department must have had official knowledge of the facts stated, but that the transcript is evidence for the defendant of the full amount

Page 33 U. S. 398

of the credits there instated, and that by relying on the said transcript as evidence of such credits, the defendant does not admit the correctness of any of the debits in the said account, of which the transcript is not per se evidence, and that the said transcript is not per se evidence of any of the items of debit therein stated except the first."

The correctness of the principle laid down by the court in this instruction has been recognized by this Court in a case between the same parties at the present term, as above referred to.

As this Court sanctions all the instructions of the circuit court given to the jury in this case at the prayer of the defendant, and also in refusing to instruct on the prayer of the plaintiffs, the judgment of the circuit court is, as a matter of course,

Affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia holden in and for the County of Washington and was argued by counsel, on consideration whereof it is ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed.