1. A paper incorporated in the record, and certified to be a
part thereof by the court below, if it has all the requisites of a
bill of exceptions, will be considered here as such, although it be
2. Where the burden of proof is on the plaintiff, and the
evidence submitted to sustain the issue is such that a verdict in
his favor would be set aside, the court is not bound to submit the
case to the jury, but may direct them to find a verdict for the
This was an action brought by Herbert for money had and received
for his use by Butler. Plea, general issue. The parties were the
only witnesses in the case. Judgment for the defendant. Herbert
sued out this writ of error.
The facts are stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
There are two questions in this case: first, whether there is
any bill of exceptions by which we are authorized to look into the
proceedings at the trial, and, secondly whether, if there is such a
bill, there is any ground for reversing the judgment.
First, is there a bill of exceptions? The document relied on by
the plaintiff in error as constituting such a bill, and certified
from the court below as part of the record, is appended to the
record of the pleadings and judgment, and commences as follows:
"The following case and exceptions is agreed on by the attorneys
for Jasper K. Herbert, plaintiff, and Benjamin F. Butler,
defendant.' Then follow the title of the cause, a record
Page 97 U. S. 320
of the proceedings had, and the evidence given at the trial,
including the rulings of the judge and the exceptions thereto; and
the case thus presented closes with the judge's certificate, as
follows: 'Settled as within, pursuant to the above consent. Sept.
19, 1875. (Signed) Charles L. Benedict."
If this paper had been entitled a "bill of exceptions," instead
of a "case and exceptions," there could not be any doubt that it
would be a sufficient bill. It has all the requisites of a bill,
except the mere name. A seal is not required, being expressly
dispensed with by the act of 1872, 17 Stat. 197; Rev.Stat., sec.
953; and we had before decided that a seal is not essential in the
courts of the United States. Generes v.
11 Wall. 193. It has the sanction and
signature of the judge, and, though settled after the trial, it was
agreed upon by the parties, and hence it is free from objections
which have prevailed in other cases. Generes v.
7 Wall. 564; Graham v.
18 How. 60. We think it is a sufficient bill
Secondly, was any error committed in the ruling of the judge?
The bill of exceptions shows that, after the evidence was concluded
on both sides, the judge directed the jury to find a verdict for
the defendant. To this direction the plaintiff excepted, and it is
the only error assigned here. The evidence is all set out in the
bill, and the question is, whether the judge erred in not
submitting it to the jury.
We decided in Improvement Company v.
14 Wall. 442, and Pleasants
22 Wall. 116, that although there may be
some evidence in favor of a party, yet if it is insufficient to
sustain a verdict, so that one based thereon would be set aside,
the court is not bound to submit the case to the jury, but may
direct them what verdict to render. As the question is fully
discussed in those cases, it is unnecessary to repeat the
After carefully examining the evidence, we are of opinion that
it justified the direction given.
The plaintiff testified, in substance, that G. B. Lamar, having
obtained a judgment for $579,000 against the United States in the
Court of Claims, and an appeal therefrom being pending in this
Court in October, 1873, Lamar employed him (the
Page 97 U. S. 321
plaintiff) to get the appeal dismissed, and agreed to give him
$20,000 for doing so; that he (the plaintiff) thereupon employed
the defendant to assist him, agreeing to divide his fee with him,
to which the defendant consented; that thereupon the defendant
proceeded and procured the dismissal of the appeal; that the
plaintiff, not getting his fee, called on Lamar, who informed him
that he had paid it to the defendant; that, on applying to the
defendant, he admitted having received the money from Lamar, but
denied that he had received any thing for the plaintiff.
The plaintiff further produced Lamar's check to the defendant's
order for the sum of $25,000, dated April 16, 1874, and the
defendant's receipt, dated April 17, 1874, in the following
"Received, Washington, April 17, 1874, of Gazaway B. Lamar,
twenty-five thousand dollars ($25,000), in full for retainer and
services as counsel in the trial of his case against Albert G.
Brown and others, in the Circuit Court of the United States for the
First Circuit, at Boston, and also in the preparations of the bill
of exceptions and entry of the same in the Supreme Court of the
United States, and also for retainer and argument of motion to
dismiss the case in the Supreme Court of the United States,
appellant, against him, from the judgment of the Court of Claims,
and services in preparing a motion for dismissing the appeal, this
being in full of all services and demands due by said Lamar up to
and including the date on which said appeal was dismissed."
"BENJ. F. BUTLER"
The defendant, in his testimony, admitted the fact that he was
employed by Lamar, through the plaintiff, in the matter of
dismissing the appeal; he also admitted the receipt of the $25,000,
but stated that he received this money in settlement of his own
services alone; that he had been engaged in various other
professional matters for Lamar, both before and after the dismissal
of the appeal, and that his fees for these services were all
included in the amount; and that he never received any thing from
Lamar for the plaintiff. In addition to this, he produced in
evidence a letter from the plaintiff to himself, dated April 9,
1874, and his answer thereto, dated April 12, 1874, of which the
following are copies:
Page 97 U. S. 322
"LAW OFFICES OF HERBERT & WILBER"
"58 BROADWAY, NEW YORK, April 9, 1874"
"MY DEAR GEN. -- I am glad to see that Lamar's appeal is
"He agreed with me to pay $20,000 to have it dismissed; this
with me. I immediately went to Washington and employed you. When
you asked me, 'What about fees?' I replied, 'You can have $5,000 or
$10,000 if you like. I have an agreement with Lamar.' You said 'All
right; on that assurance I will go to work,' and we started off for
the Attorney General's office."
"Subsequently you told Lamar that 'I (you) must command the
ship, or you would not sail,' or words to that effect."
"Since that time I have left the matter with you."
"Now I want to have you understand in relation to this matter,
as I stated to you before leaving Washington, that Lamar's
agreement is for $20,000 to have the appeal dismissed. I want
you to collect the money and send me a check for any portion to
which you may think me entitled.
"I advised Lamar, when in Boston, to employ you and me in this
case. The employment did not come until others had failed, which
made it more difficult."
"Nevertheless, the agreement between L. and myself, before I
would call on you in regard to it, was as I have stated."
"Lamar is in Washington, and I leave the balance to you."
"J. K. HERBERT"
"Hon. B. F. BUTLER"
"HOUSE OF REPRESENTATIVES"
"WASHINGTON, D. C., April 12, 1874"
"SIR -- I have no power or authority to collect money in the
case of Mr. Lamar, nor can I collect your fees.
"Very truly yours,"
"BENJ. F. BUTLER"
"J. K. HERBERT"
"58 Broadway, New York"
It was after this correspondence, and after the defendant had
settled with Lamar, that the plaintiff (as testified by him) called
on Lamar, and was informed by him that he had paid the defendant,
and that the defendant, on being applied to, admitted the receipt
of the money, but denied having received any thing for the
Page 97 U. S. 323
Now it is evident from this outline of the evidence that upon
the issue made by the pleadings, namely, whether the defendant
received any money for the use of the plaintiff, there was no
necessary conflict in their testimony. The plaintiff may think that
the defendant ought to have collected his (the plaintiff's) fees,
as well as his own. But he cannot deny that the defendant expressly
refused to do so when applied to for that purpose, and he does not,
for he cannot, deny that the defendant (as he says, and as his
receipt shows) may in fact have settled his own fees alone. Lamar's
declaration cannot affect the defendant, especially in view of the
express language of the receipt taken by him. Therefore, as the
burden of proof was on the plaintiff to sustain the issue and as
the whole evidence taken together does not sustain it on his part,
but the only direct evidence on the subject -- namely, the
testimony of the defendant, and the receipt given by him to Lamar
-- is to the contrary, the judge properly directed the jury to find
for the defendant.
The minor points in which there may have been a conflict in the
testimony of the parties do not affect the main question.