This case involves only disputed questions of fact. It was heard
here upon the pleadings, proofs, and the findings of the jury in
response to the issues sent down to be tried at law. Held
that issues of the kind are properly directed where such questions
are involved in great doubt by conflicting or insufficient
evidence. Held further
that such findings are regarded as
influential in an appellate court, but they are not conclusive.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Peculiar as the controversy is it will be necessary to make some
reference to the pleadings in order to understand its origin and
the precise character of the questions presented here in the
assignment of errors.
Two of the complainants -- to-wit Jeremiah Beall and William A.
Beall -- claimed in the original bill of complaint, filed in the
superior court of the state, to be joint owners with the other
appellee, in equal proportions, of eight thousand six hundred and
ninety-four bales of cotton, and the second complainant claimed
that he was a joint owner with the aforesaid appellee, of the other
parcel of cotton, consisting of one thousand one hundred bales,
making in all nine thousand seven hundred and ninety-four bales of
cotton, of the alleged value of $2,000,000. They not only claimed
to be the owners of the cotton in the proportions described, but
they claimed that John Garsed and George Schley, therein named as
respondents, had at that date commenced to seize and remove the
same for their own benefit under some pretended military orders,
and that Thomas S. Metcalf, the other part owner, was deterred by
fear of bodily harm from making any effort to prevent such seizure
and removal or to join with them in asserting the plain and
undoubted right of the described parties to the joint ownership of
Suffice it to say, without entering into details, that the bill
of complaint exhibits a detailed description of all the alleged
Page 92 U. S. 685
pretenses and proceeds to allege that the same, one and all, are
without any legal or equitable foundation whatever.
Two other parcels of cotton, it is admitted, were sold by said
Metcalf to the first-named respondent, but the complainants allege
that he never possessed any authority to sell any portion of the
cotton in question, and they aver that he never did make any offer
of the same to the respondent. Voluntary recognition of the
pretended contract being refused, the respondent applied to the
military authorities of the district to enforce the same, and it
appears that the military authorities decided that the cotton had
been sold to the respondent, as he claimed, and that they
promulgated an order that the supposed contract of sale should be
carried into effect.
Sufficient appears to warrant the conclusion that it was under
that order that the respondents commenced to seize and remove the
cotton, and it appears that the complainants contested the legality
of that order and prayed the court in which the bill of complaint
was filed to restrain and enjoin the respondents from removing the
cotton and from all attempts to take possession of the same and to
abstain from all interference with the cotton until the final
hearing of the cause.
Pursuant to the prayer of the bill of complaint, a temporary
injunction was granted. Service was made, and the respondents
appeared and filed separate answers.
Ownership of the cotton as alleged in the bill of complaint is
admitted by the first-named respondent, but he sets up the defense
that he purchased the same of the other respondent and that the
other respondent was authorized to sell the same by Thomas S.
Metcalf, who was one of the joint owners. Detailed reply to every
allegation of the bill of complaint is set forth in the answer,
which need not be reproduced.
Apart from that, the respondent first named prayed that he may
have the decree of the court in his favor and alleged that it was
evident that a recovery of damages in a suit at law, for and on
account of the breach of the contract committed by the
complainants, would not be an adequate compensation for the
nonperformance of the same, and he also prayed that the
complainants may be ordered by the decree of the court to perform
the contract, and if anything prevents it, that they may
Page 92 U. S. 686
be ordered, directed, and adjudged to respond in damages to the
respondent to an amount which will compensate him as fully as if
specific performance of the contract had been completely carried
into effect, and that the issues presented in the pleadings may be,
fully and fairly and without multiplication of actions, adjudicated
between him and the complainants. Most of the allegations in the
answer of the other principal respondent, so far as respects the
pretended sale of the cotton, correspond with the allegations in
the answer of the first-named respondent. Metcalf was also made a
party respondent, and he appeared and filed an answer in which he
admitted in substance and effect that the allegations of the bill
of complaint were correct.
Proofs were taken on both sides, but the counsel of the
complainants, in vacation, before the cause came to final hearing,
filed a motion in the clerk's office dismissing the suit, to which
motion the first-named respondent objected. Hearing upon the
objection was had, and the court finally decided that the bill of
complaint was properly dismissed, but that the answer of the
first-named respondent, being in the nature of a cross-bill, must,
under the law of the state, be retained for the purpose of
adjudicating the question of relief prayed therein by that
respondent in the original bill of complaint, and that he, the
respondent, by those allegations made himself complainant, and that
the complainants in the original bill thereby became and are made
the respondents, as in a cross-bill. Attaway v. Dyer,
Ga. 189; Code (Ga.) sec. 4181.
Due application was subsequently made by the complainant in the
cross-bill that the cause be removed into the circuit court of the
United States, and the record shows that the motion was granted and
that the order of removal was carried into effect so far as
respects the cross-bill, as constituted under the decision of the
New pleadings in such a case should have been filed in the
circuit court, and such, it would seem, were the views of the
appellees as they submitted a motion that the cause be not
entertained in the circuit court; but the parties subsequently
entered into stipulations in respect to the conduct of the cause
which authorized the conclusion that all such objections are
Page 92 U. S. 687
waived by the parties. Enough appears to warrant that conclusion
in the fact that proofs taken in the original suit were in some
instances brought forward by stipulation and made a part of the
record in the circuit court, and in the more important fact that
the parties made respondents in the cross-bill appeared in the
circuit court and filed separate answers.
Reference will first be made to the answer of William A. Beall.
He alleges that all the cotton except the one thousand one hundred
bales was bought by Jeremiah Beall in his own name, under an
arrangement between the purchaser and the other two respondents
that he, Jeremiah, should buy, store, and control, and dispose of
the cotton in his own name, as if sole owner; that William A. Beall
should negotiate loans for all the money needed, except what the
purchaser might advance; and that the other respondent should give
credit to the paper of the party contracting to furnish the money,
or discount the notes of his firm for that purpose.
Subsequently, sales of the cotton purchased were to be made by
the designated purchaser as he should see fit, and the alleged
stipulation was that the proceeds of the sale should be applied to
the extinguishment of the loans and that the profits should be
divided equally between the parties. Sales sufficient to pay all
the loans contracted for the purchase of the cotton had been made
before the present controversy arose, except the advances made by
the purchaser and a few small debts amounting in all to about
$200,000, and the same respondent avers that his interest in the
cotton and that of the last-named appellee were only silent
interests in the accounts to be rendered on final settlement, the
other party having the sole right and power of purchasing,
preserving, and disposing of the cotton in his own individual name
as the sole owner.
Other defenses are also set up in the answer, as follows:
2. That Schley was not the agent of Metcalf, nor of himself, nor
of the purchaser of the cotton, nor was he himself or Metcalf
authorized to sell the same or any part thereof, nor to employ or
appoint a broker or agent to sell or dispose of the same.
3. That the appellant never purchased the cotton of anyone, and
that he well knew that neither Schley nor Metcalf possessed any
authority to sell the cotton upon any terms whatever.
Page 92 U. S. 688
Separate answer was also filed by Jeremiah Beall to the effect
following: that all the cotton except the one thousand one hundred
bales was purchased by him in his own name, and that it was in his
sole and exclusive possession and control, and that neither of the
other respondents had any authority whatever to sell or dispose of
Appearance was also entered by Thomas S. Metcalf in the circuit
court, and he also filed an answer in which he denied all the
material allegations of the appellant in respect to the pretended
purchase of the cotton, and averred in the most explicit and
positive manner that he never offered to sell the cotton either to
Schley or the appellant, as alleged by the latter in his answers to
the original bill of complaint.
Voluminous proofs were taken by both parties in the circuit
court, and on the 14th of May, 1869, it was ordered that the
commission for taking testimony be closed and that the cause be set
down for hearing. Such hearing was subsequently had before the
district judge, sitting in the circuit court, and he delivered and
elaborate opinion in which he discussed most of the matters of law
and fact involved in the case without announcing any final
conclusion as to the rights of the parties. Instead of that, he
entered an order in the cause to the effect that certain prescribed
issues, formally set forth in the transcript, should be tried by a
jury, and prescribed certain rules and regulations to be observed
by the parties in conducting the trial.
Pursuant to that order, a jury was subsequently called, and the
transcript shows that the parties appeared and that all the issues
framed by the court were duly submitted to their determination.
These issues were framed by the district judge, sitting in the
circuit court, but the transcript shows that the circuit judge
presided at the trial of the same and that the jury, by their
verdict, made a response to each issue. All of the findings were in
favor of the respondents, and it appears that both the circuit and
the district judges concurred in the final decree, which is that
the case be dismissed with costs, including the cross-bill.
Immediate appeal was taken by the complainant in the cross-bill to
Five principal errors are assigned, as follows:
1. That the
Page 92 U. S. 689
court below erred in dismissing the case, including the
2. That the court erred in holding that there was no valid
contract for the sale of the cotton.
3. That the court erred in holding that the code of the state
required that the authority of the alleged agent must be in
4. That the court erred in holding that the contract for the
sale of the three parcels of cotton in this case was not an entire
5. That the court erred in not admitting the statement of the
agent to prove that he received authority from Metcalf to sell the
cotton in controversy.
Years of litigation have ensued since the original bill of
complaint was filed in the state court, but the Court here is
unanimously of the opinion that the decision of the controversy
must turn chiefly upon the issues of fact involved in the
pleadings, and in that view of the case it becomes necessary to
advert with some more particularity to the preliminary transactions
out of which the controversy arose.
Cotton in bales to a very large amount was collected under the
orders of a Confederate officer and was piled in certain fields
adjacent to the City of Augusta, to be burned in case our army
should approach that city. Certain quantities of cotton belonging
to the appellee Metcalf were collected for that purpose under those
orders, but our army did not enter Augusta, and the cotton was left
where it was deposited by the Confederate military forces. Of
course it was much exposed, and Metcalf and Schley entered into an
agreement by which the latter undertook to remove as much of the
cotton belonging to the former as he could to a place of safety,
and in consideration of such service he was to be entitled to
one-third of the quantity so removed and saved. Twenty-five hundred
bales were, by that contract and one other of a like character,
saved to the owner, he being entitled to two-thirds of the cotton
saved by the other parties to the contract.
How much time was consumed in the operation does not appear, but
it does appear that the appellant was in Augusta about that time to
buy cotton, and that Metcalf and Schley agreed to sell to him the
cotton belonging to them which was saved by that contract. Schley
and the appellant were acquainted, and it appears that the former
offered the cotton
Page 92 U. S. 690
to the latter, and that the latter desired to purchase it if he
could have some indulgence, which was finally given him by Schley,
in pursuance of an arrangement between the owners of the
Beyond controversy, that matter was amicably arranged, and it
was during one of these interviews that Metcalf informed the
appellant of the existence of another large lot of cotton, stored
in the name of another party, in the southwestern part of the
state, in which he, the informant, as he represented, had an
interest, and which, as the informant believed, could be bought in
cash for the same price.
Evidence was also introduced which shows that Metcalf handed to
Schley a memorandum in writing touching that large lot, and that
the lot therein described contained nine thousand seven hundred and
ninety-four bales, and that the same was deposited or stored at the
several places named in the memorandum exhibited in the transcript.
Appended to the memorandum was the following: "Believed to be in
very good order as a whole lot, and to average five hundred pounds
to the bale." Speaking of the bales, he says,
"They belong to, and were bought by, a large planter in the
southwest part of the state, and can this day be bought for twenty
cents a pound in greenbacks. They are mostly crop-lots entire, and
therefore are desirable for spinners, as cottons in that section
are long-staple. There is not much doubt but that they can be had
at that price a short time hence, if a buyer should come out with
cash and go down and see the owner and the cotton."
Authority to sell the large lot, it is manifest, is not there
conferred, but Schley sets up in his answer that Metcalf, when he
handed him the memorandum, gave him verbal authority to sell the
large lot also to the appellant, and that he afterwards, on the
same day, agreed that the terms of sale should be the same as the
terms for the other lot. Written proof of that allegation is not
exhibited, and Metcalf denies, both in his answer and in his
testimony, that he ever gave Schley any such authority, and insists
that he handed him the memorandum merely as information, which he
might show to the appellant, to let him know where and from whom
the large lot of cotton could be purchased; and he denies also that
he himself had
Page 92 U. S. 691
any authority to sell it, and he avers that he so informed
Schley when he handed him the memorandum.
Opposed to that is the testimony of Schley, and it appears that
his offer to the appellant was reduced to writing, dividing the
cotton into three classes, in substance and effect as follows,
stating in respect to class No. 1 that he controlled two thousand
and eighty-nine bales of selected cotton, previously shown to the
appellant, and which he offered to sell to him, to be reweighed and
delivered at the gin house where it then was, at twenty-five cents
per pound, payable there in greenbacks, adding, "you have the
privilege to the 6th of July to close the trade by telegraph," and
that he, the seller, would wait for the money until he, the buyer,
could reach there with it. What he said in respect to class No. 2
was that he had six hundred bales of his own, of the same lot,
which "you can have for eighteen cents in gold, payable here as
soon as you can return with it." Both of those parcels were
undoubtedly sold to the appellant, and they are not now in
Class No. 3 is in controversy, and in respect to that the same
party stated in the same communication that he also controlled, and
would have authority to sell by the 3d of July, nine thousand seven
hundred and seventy-eight bales of cotton stored as therein
specifically described, and that he would sell the same, delivered
where stored, at twenty-three cents per pound -- the cotton to be
reweighed, and payable in greenbacks, adding as follows: "This
purchase secured after I telegraph you." Late in the same afternoon
Schley sent, by his servant, the following note to the
"Since you left town, I saw the party controlling the large lot
of cotton No. 3, and it is agreed that if you telegraph to take it
they will ratify what I have agreed,"
Three days later, Schley informed Metcalf of the substance of
the note sent by the servant to the appellant, and it appears that
Metcalf promptly replied that he was misunderstood; that he had
given no such authority. Whereupon Schley immediately sent a
telegraph to the appellant, that he had misunderstood the parties
in respect to lot No. 3, and requested him, if he still wished to
purchase that lot, to say so by telegraph, and that he would answer
if they would sell.
Page 92 U. S. 692
Conflicting testimony is exhibited in the transcript as to the
precise period of time when the preceding telegram was received by
the appellant, but it appears that he, on the 6th of the same July,
telegraphed to his correspondent that he accepted lots 1, 2, and 3,
and that gold and greenbacks would be sent by Adams Express in the
next vessel, and directing his correspondent to forward the cotton.
Schley, immediately on the receipt of that telegram, showed it to
Metcalf, who repudiated so much of it as related to lot No. 3 and
dictated the following answer, which Schley without delay sent to
"Parties owning the nine-thousand-bale lot refuse to sell unless
the funds are here. . . . If here today, the bargain could be
closed, and probably can be on your arrival."
Neither the gold nor greenbacks were shipped to pay for the
three lots, as stated in the prior telegram, but it does appear
that the contracts for lots 1 and 2 were subsequently closed, and
that the amount was paid partly in money and partly in drafts.
Metcalf refused to deliver lot No. 3, and the appellant applied
to the military authorities for an order to compel the delivery.
Orders of the kind were at one time give, but it is unnecessary to
discuss that topic as the Court is unhesitatingly of the opinion
that the military authorities were entirely without jurisdiction in
the premises, and that all such orders and the proceedings therein
are absolutely null and void, which is all that need be said upon
Pending those proceedings, the original bill of complaint was
filed, and the complainants obtained the writ of injunction, to
which reference has already been made. On the 20th of September
following, all the military orders touching the cotton in
controversy were revoked, and, four days later, the complainants
proposed to dismiss the bill of complaint. Counsel were heard, and
the court decided that the bill of complaint might be dismissed,
but that the answer of the appellant must be retained for the
purpose and under the conditions heretofore sufficiently
Controversies seldom arise where the proofs are more conflicting
and irreconcilable than in the case before the Court, and that
remark applies with all its force to the testimony of
Page 92 U. S. 693
the parties as well as to many of the other witnesses. Taken as
a whole, the Court here is of the opinion that the case is one
where it was quite proper that the circuit court should invoke the
aid of a jury in settling the controverted matters of fact.
Feigned issues were accordingly framed, and ten questions were
submitted to the jury, all of which appertain to the material
matters of fact in dispute between the parties -- the two great
questions being as follows: 1. whether the appellant ever purchased
lo No. 3, either of Schley or of the owners, or either of them; 2.
whether Schley ever had any authority to sell that lot, either from
Metcalf or the other owners.
Presented as those questions were in every proper form to the
jury, it will be sufficient to reproduce the findings of the jury
without repeating the questions, except in one or two instances.
Considering the importance of the first question, it will be given
in the form exhibited in the transcript:
1. Whether there was a sale of lots 1, 2, and 3, by Schley to
Garsed, and if so whether the contract of sale was intended by the
parties to be one entire and indivisible contract.
Responsive to that question, the jury found that there was a
sale of lots Nos. 1 and 2, but that there was no sale as to lot No.
3, and if there was a sale of lot No. 3, Schley had no authority
from Metcalf to make the sale, and that it would have been a
separate, unauthorized, and distinct sale.
They also responded to the second question, and found that the
contract was not entire, and that as to lot No. 3, it was never
confirmed or ratified by Metcalf.
Part of the third question is equally important, and in response
to that the jury found that lot No. 3 was never sold, and if so,
without authority from Metcalf. Consequently it was not sold at a
stipulated price. In response to the fourth question, the jury
found that there was no time fixed for the delivery of the
Much less importance is attached to the fifth question, as it
presents the inquiry whether the cotton was to be weighed or
otherwise prepared for delivery, and the jury found upon that
subject that neither of the parties was to prepare or weigh the
cotton for delivery. In response to the sixth question, that the
cotton, so far as appeared, was never reweighed.
Page 92 U. S. 694
Inquiry was also made of the jury, in the seventh place, as to
the market price of cotton, and the jury found that a reasonable
price at that time was eighteen or twenty cents per pound at the
Beyond all doubt, every one of the preceding findings of the
jury tends more or less strongly to support the theory of the
appellees, but the finding of the jury to the eighth question is
even more conclusive that the claim of the appellant is without
merit, as they find that Schley had no verbal authority from
Metcalf to sell lot No. 3, and that it was not included in the sale
of lots Nos. 1 and 2, and that the appellant, by virtue of his
contract with Schley as to lots 1 and 2, neither accepted nor
actually received any part of lot 3 or paid any part of the
Suppose the appellant never paid any part of the purchase money
for lot No. 3, still it was insisted that he offered to perform,
and was ready to perform, his part of the contract, and in order
that that issue might be determined by the jury, the ninth question
was framed, and it appears that the jury found in response to that
inquiry that the appellant did not perform or offer to perform his
part of the contract, and that he was never in a condition to
perform it so as to entitle him to demand a delivery of the cotton,
and they found, in response to the tenth inquiry, that he sustained
no damages in relation to lot 3, upon the assumption that the
findings are correct.
Costs were awarded to the respondents in the cross-bill, and the
recital of the final decree shows that the parties were heard upon
the pleadings and evidence in the case, and upon the findings of
the jury rendered in response to the issues sent down to be tried
at law, and which were duly returned to the circuit court sitting
in equity. Error is not assigned in respect to that proceeding, and
inasmuch as nothing is exhibited in the record to the contrary, the
presumption must be that it is correct. Issues of the kind are
properly directed, in a case where the questions of fact are
involved in great doubt, by conflicting or insufficient evidence,
and it is clear that the case before the subordinate court was one
of that character. Adams's Eq., 6th Am. ed., 376; Flagg v.
2 Story 387; Field v.
6 Cranch 8.
Page 92 U. S. 695
Equity courts may decide both fact and law, but they may, if
they see fit, refer doubtful questions of fact to a jury. Findings
of the kind, however, are not conclusive, and, if not satisfactory,
they may be set aside or overruled; but if the finding is
satisfactory to the chancellor, the practice is to regard it as the
proper foundation for a decree. Harding v.
11 Wheat. 103. Such findings are regarded as
influential in an appellate court, but they are not conclusive.
Goodyear v. Rubber Co.,
2 Cliff. 365; Brockett
3 How. 691; 2 Dan.Chan.Prac., 4th Am.
ed., 1072. Consequently counsel were allowed to review the whole
evidence in the case, and the court has followed the course adopted
by the counsel at the argument, and the result of the review of the
evidence is, that the court is clearly of the opinion that the
findings of the jury were correct in all material respects, and
that there is no error in the record.