A. filed a bill in equity to enforce a forfeiture and obtain
compensation for breach of agreement. The defendant demurred by a
single demurrer. The court sustained the demurrer as respected the
overruled it as to the residue of the bill. The complainant
his bill in conformity to the opinion of the court. The
defendant answered. Testimony was taken, and the complainant got a
decree for so much money, less, however, than he claimed. He
thereupon appealed to this Court. The defendant did not appeal.
that though the court below had erred in sustaining
and overruling in part
a demurrer which
yet that the complainant, by amending his
bill, and the defendant, by answering afterwards, had both waived
their right to object anywhere, as the defendant specially had in
this Court by not appealing, and that the question of forfeiture
was withdrawn from this Court.
Page 82 U. S. 147
2. A. leased a wharf from a city on the Mississippi before the
rebellion for a certain term, the city binding itself for indemnity
if his "right to collect wharfage was suspended for any period by
the intervention of third parties." Held
diminution of trade on the river caused by the rebellion did not
suspend his right to collect, and that he had no claim for
indemnity under his contract on account of such diminution.
3. The same lease providing
"that in case the right to collect wharfage or rents should be
defeated permanently through the instrumentality or with the aid of
the mayor and council of the city,"
the property should revert, held
that the right was not
defeated within the meaning of the clause by an ordinance which the
complainant had himself caused to be passed, nor by a "tax" which
the city had reserved a right to lay, as distinguished from a
wharfage charge, nor by quarantine embargo laid with the
Appeal from the Circuit Court for the Southern District of
Mississippi on a decree given by that court on a bill filed by
Charles Marshall against the City of Vicksburg. The facts of the
case can be gathered from different parts of the opinion given
MR. JUSTICE SWAYNE delivered the opinion of the Court.
On the 21st of November, 1851, the parties mutually executed an
indenture whereby Marshall conveyed to the city certain real estate
therein described and the city released to him certain other real
estate also therein described. The premises conveyed to the city
embraced the city landing for steamers and other watercraft on the
Mississippi River. It was stipulated that Marshall should receive
all the wharfages and rents accruing from the premises conveyed by
him from the date of the instrument, and for the term of ten years,
to commence three months after the removal of a wharf boat known as
the Governor Jones.
The wharfages collected from steamers were to be according to
the rates specified in a lease from Marshall to Thomas Porterfield,
and those from all other watercraft were to be such as should be
fixed by the mayor and council of the city. The latter were not to
be less than was then customary.
Page 82 U. S. 148
The city reserved the right to levy such tax on goods, wares,
and merchandise coming to the landing as the mayor and council
might deem proper. The indenture contained also the following
clauses, which lie at the foundation of this litigation and must
control the rights of the parties:
"It is expressly agreed by the parties hereto that if the
right to collect wharfage be suspended for any period
the intervention of third parties, the time of such suspension
shall be added to the said term of ten years, it being the
intention of these parties that the said Marshall, his
representatives, and assigns shall actually receive the rents and
wharfages accruing in ten years altogether, and no more."
"And in case the right to collect wharfage or rents shall be
interrupted or defeated permanently
instrumentality or with the aid of the said Mayor and Council of
the City of Vicksburg, all the property above conveyed by said
Marshall and wife shall immediately revert to him, his heirs, and
assigns, and be as fully and absolutely his as if this deed had
never been executed."
As filed, the bill asked for an enforcement of the forfeiture
provided for. It alleges that the enjoyment of Marshall's wharf
rights were interrupted by quarantines established by the city in
the years 1853, 1854, 1855, and 1858, which subsisted for periods,
amounting in the aggregate to about ten months, and claims that his
term of ten years should be elongated to that extent. It claims
also under these clauses compensation for the interruption of the
navigation of the river to his injury by the civil war, and for
several alleged breaches by the city of the agreement.
The city demurred. The court sustained the demurrer so far as it
related to the forfeiture, and overruled it as to the residue of
the bill. The complainant amended the bill in conformity to the
opinion of the court. The defendant answered, and testimony was
taken on both sides. The court decreed in favor of the complainant
for the sum of $7,600.67. The complainant thereupon appealed to
this Court. No appeal was taken by the city.
Page 82 U. S. 149
The court was right in the view which it took of the prayer for
a decree of forfeiture. Equity never, under any circumstances,
lends its aid to enforce a forfeiture or penalty or anything in the
nature of either. [Footnote 1
Nevertheless it was an error to sustain the demurrer in part. That
cannot be done. Where there is a single demurrer, it must be wholly
sustained or overruled. [Footnote
] But the defendant, not having appealed, is foreclosed from
making the objection, and indeed it was conclusively waived by both
parties -- by the complainant by the amendment which he made to his
bill, and by the defendant by answering. The question of forfeiture
is therefore withdrawn from the case.
The first of the clauses relates to the acts of third persons.
Under this clause, the only claim asserted is one growing out of
the diminution of wharf charges accruing to Marshall by reason of
the war. The language of the clause is "if the right to collect
wharfage is suspended for any period," &c. He was allowed to
collect the wharfages as long as he claimed the right to do so, and
then voluntarily delivered up the possession of the landing
according to an understanding between him and the city authorities.
This is proved by the testimony of Lindsay and Auter. [Footnote 3
Auter, who called upon him as chairman of the landing committee
of the city council, says:
"He told me that his term had expired and that he had no more to
do with the landing. . . . He surrendered the landing to me as
chairman of the landing committee. . . . Mr. Marshall told me the
city had imposed a hospital tax from flat boats amounting to about
$1,800. This he claimed rightfully belonged to him, and this was
all he did claim."
Lindsay was the mayor. He says:
"Marshall made the surrender in writing. . . . I took the floor
at a meeting of the council and stated to the board that in all the
controversies I had held with Mr. Marshall, he had said he
Page 82 U. S. 150
would, at the end of three months' extension (making the
contract ten years and three months), make a peaceable and quiet
surrender to the city, which he did do."
The breaking out of the war in 1861 necessarily interrupted the
navigation of the Mississippi from the states not in rebellion. But
the complainant's right to collect was in no wise suspended. He
suffered from the war as others did, but his contract secured him
no indemnity, and a court of equity can give him none.
The second clause relates to the acts of the city. It declares
that "in case the right to collect wharfage or rents be interrupted
or defeated permanently," &c. Under this clause, three claims
have been pressed upon our attention.
It was insisted that the city, by her ordinance of February 7,
1852, reduced the wharfage for steamers from $5 per trip to $5 per
week, in violation of the contract with the complainant, and
largely to his injury. This is a grave imputation, and if
established, would certainly entitle him to compensation. But the
evidence shows that he drew up the ordinance himself, urged its
adoption upon the council, that the city had no interest in the
matter, and that the council passed it only by reason of his
urgency, and because he thought the change would be beneficial to
him. [Footnote 4
non fit injuria.
It is alleged that under the ordinance of June 7, 1852, the city
made a wharfage charge of $1 each upon all watercraft other than
steamers touching at the landing. Upon looking into the ordinance,
we find it too clear to admit of doubt or require discussion that
this charge was a tax, such as the city had reserved the right to
impose, and not a wharfage charge falling within the category of
those which belonged to the complainant. At the same time that this
tax was exacted, Marshall was collecting an additional $2 from each
of the vessels upon which it was imposed. With this the city in no
wise interfered, and there is no complaint on that subject.
Lastly, it is claimed that the complainant is entitled to
Page 82 U. S. 151
income which he would have received during the extension of this
term of ten years if it had been extended at its close for the
length of time the quarantines subsisted. The quarantines affected
only boats coming up the river, and only such of those as had cases
of fever on board. The quarantines were established with the
consent of the complainant. He admits this, but says that although
he then made no such claim, he expected his term to be extended
accordingly. He knew all about the quarantines when the extension
which he asked for was conceded to him, and when he yielded up the
possession, saying he was done with the landing and claimed only
the proceeds of the tax of $1, which we have already considered.
His right to collect wharfages was neither "interrupted or defeated
permanently" nor indeed gainsaid or questioned by the city.
The claim is neither within the letter, meaning, nor equity of
the contract and must be denied. It appears that Marshall made two
loans from the city to remove encumbrances -- one of $1,000. The
amount of the other is not shown. Neither of these loans has been
repaid. There is no report of a master in the record. The decree is
very brief. The record furnishes no means of ascertaining the
ground upon which the court proceeded in coming of the conclusion
that the complainant was entitled to the sum decreed in his
After a careful examination of the case, we have found no error
against the appellant.
Livingston v. Tompkins,
4 Johnson's Chancery 415; 2
Story's Equity § 1319.
Daniels's Chancery Practice 583, 584.
Record, pp. 115, 125.
the testimony of Donovan, Record, p. 150. and of
Arthur, p. 139.