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Vol. II.)

BIER v. DOZIER.

(No. 5.

Two bills of exceptions taken by the defendants to opinions given by the circuit court during the trial of the cause were made a part of the record. The first states that after all the evidence had been given to the jury, the counsel for the defendants moved the court to instruct the jury as follows — that is to say: That if the jury believe, from the evidence, that the contract between the plaintiff and defendants, stated in the declaration, was made for or about any matter or thing which was, at the time, prohibited and made unlawful by any law of the United States, or in violation of the policy of the United States government, then said contract is void, and they must find for the defendants. But the court refused to give the said instruction; and the defendants excepted.

The second bill of exceptions states, in substance, as follows: That after the jury were sworn to try the issues joined, the plaintiff (who testified for himself), to maintain the said issues on his part, proved the following facts, to wit: that in the latter part of January, or the first of February, 1865, two men, representing themselves by the names of Strooke and Bier, came to the home of the plaintiff, situate near the Potomac River, in the county of Westmoreland, near night, and requested of the plaintiff permission to deposit in his barn, until the next morning, a large quantity (about eighty-two boxes) of tobacco; which deposit he declined to allow. They then represented to him that they were taking the said tobacco to Maryland, to be exchanged for bacon for the Confederate States government; and that they had full authority to take the said tobacco to Maryland. The plaintiff then consented to receive the said tobacco until the next day. The said Strooke and Bier then agreed with the plaintiff, that if he would receive said tobacco in his barn, and he should sustain any damage or injury from the forces of the United States, in consequence of the said tobacco being there deposited, they would make good all losses which he might sustain. They were wealthy, and good for any agreement they might make. The weather was very cold, and the river and creek were blocked up with ice. Said Strooke remained at the house of the plaintiff three weeks. While there the plaintiff frequently manifested his uneasiness about the tobacco being on his premises, and was told by said Strooke that if ever he was injured thereby, he would pay all losses which he might sustain. The said tobacco remained in the barn of the plaintiff, on storage, till the 17th of March, 1865, when the Potomac flotilla, under Commodore Parker, made its appearance and began to shell the premises of the plaintiff. The plaintiff, with such assistance as he could get, removed the said tobacco to the woods, and concealed the same; and it not being found by the forces of Commo· dore Parker, the said forces of the United States government burned the dwelling-house, the barn, stable, and all the houses of the plaintiff, except the overseer's house, all the furniture, except their beds, the agricultural implements, and one year's provisions. The loss of the plaintiff, in consequence of said burning, was not less than $6,352. Between the time of the deposit of the tobacco and its removal, he had interviews with the partners, Strooke, Boreman, Bier, and Mann, each of whom acknowledged himself a member and partner of the firm of Strooke & Co., and all promised him indemnity for any loss he might sustain. After the burning, Bier and Mann came to his house and renewed the promise

VOL. II.)

BIER v. DOZIER.

(No. 5.

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to reimburse him for his loss. Mann stated that Strooke proposed to send plaintiff $5,000 by him, but feared, from the unsettled state of the country, it might be lost. On the 27th of May, 1865, Bier and Mann came to the house of the plaintiff with what purported to be an order from the secretary of the treasury of the United States, indorsed by the president, for the delivery of the tobacco to them ; and upon consultation

' with his friends, he determined to give up the tobacco, though he had previously determined to hold on to it until paid for the loss he had sustained. "On motion of the defendant's counsel, the evidence touching the said order was excluded from the jury, unless the order was produced. All the tobacco, except three boxes, which plaintiff bad used, and two boxes of damaged tobacco, and a half a box of sound tobacco given to the plaintiff by the defendants, was delivered to Bier and Mann.

Dr. Harvey also proved substantially the same facts as above. Another witness also proved that Strooke and Bier came to his house, and in conversation with the daughter of the plaintiff, who was staying there, concerning the loss of her father's property, Strooke told her not to be sad, he would build her father a better house than the one he had lost, and fully reimburse to him the loss he had sustained.

On cross-examination of the plaintiff's witnesses, it was further proved, that the plaintiff resided near the Potomac River, and was in the habit of entertaining at his house refugees from Maryland and Virginia ; that a signal corps of the Confederate States was stationed during the war in one and a half miles from the plaintiff's house, and the members of said corps were frequently at his house; that some of Colonel Mosby's men had been there on one occasion ; and the blockade runners had stopped at the plaintiff's house sometimes, though the plaintiff had not been engaged in the blockade business ; that when Strooke and Bier came to the house of the plaintiff with the tobacco, they exhibited to him and a friend stopping with him, Dr. Harvey, a paper writing from an officer of the Confederate States, approved by the secretary of war of the Confederate States, giving Strooke & Co. full authority to carry tobacco into Maryland to exchange for bacon for the use of the Confederate States, which paper showed that Strooke & Co. had given bond to the Confederate States before the said paper was furnished to them; and Strooke stated the bond was for $100,000 or more. And these were all the facts proved in the cause. Thereupon, the defendants moved the court to give the following instructions to the jury:

If the jury shall believe from the evidence that the consideration of the contract set forth in the declaration was in violation of any statute of the Confederate government, or in violation of its policy, then said contract is void, and they must find for the defendants.

2. If the jury shall believe that said contract was for an illegal transaction, then said contract is void, and they must find for the defendants.

3. If the jury believe from the evidence that the consideration of said contract is altogether illegal, it is insufficient to sustain a promise, and the agreement is wholly void, whether the law violated be the common law or statute.

4. If the jury believe from the evidence that the said contract was

Vol. II.]

BIER v. DOZIER.

(No. 5.

made for or about any matter or thing which was at the time prohibited and made unlawful by any law of the United States, or in violation of the policy of the United States government, then said contract is void, and they must find for the defendants.

5. Unless the jury shall believe from the evidence that the property of the plaintiff was burned and destroyed by the forces or troops of the United States government, because the tobacco of the defendants had been stored in the houses of the plaintiff, they must find for the defendants.

6. If the jury find for the plaintiff, then they must deduct from the amount they shall find such an amount as shall be the value of the tobacco used by him.

All of which instructions the court gave, except the one marked 4; which the court refused to give.

And the plaintiff moved the court to give the following instruction ; which the court gave:

If the jury shall believe from the evidence that S. Strooke & Co. did deposit on storage with the plaintiff tobacco which they had authority from the secretary of war of the Confederate States to take into Maryland, to exchange for bacon for the Confederate States government, and promised to pay all damage done to the property of the plaintiff by the United States forces, by reason of the said tobacco being so stored, and that the said property was destroyed by the United States forces, and that after its destruction the said Strooke & Co. assumed to pay such damage as the plaintiff had sustained thereby, then they should find for the plaintiff.

Thereupon, the jury found a verdict for the plaintiff, as aforesaid ; and the defendants moved the court to set aside said verdict and grant thém a new trial, upon the ground that said verdict was contrary to law and evidence ; which motion the court overruled, and the defendants excepted to the opinion of the court overruling said motion.

The case was argued by Crump, for the appellants. There was no counsel for the appellee.

MONCURE, P., after stating the case, proceeded :

First. Did the circuit court err in refusing to give the instruction asked for by the defendants, as mentioned in their first bill of exceptions ?

This instruction was asked for after all the evidence had been given to the jury. All the facts proved by the evidence are certified by the court in the second bill of exceptions; and though none of the evidence or facts proved are set out in the first bill of exceptions, I will consider the question as to the propriety of giving the instruction therein mentioned in reference to the facts of the case, as certified in the second bill of exceptions. So considering it, the question was not an abstract one, and could not, properly, have been refused on the ground that it was. Then, was it proper to refuse it on any other ground?

During the war, neither the law of the United States, nor any policy of their government, was in force in any part of the Confederate States not in the possession or under the control of the United States. That law and that policy, in contemplation of law, are presumed to have been, and actually may have been, unknown to the citizens of the Confederate States, who were alien enemies to the citizens of the United States, be

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Vol. II.)

BIER v. DOZIER.

(No. 5.

tween whom all intercourse, social, commercial, or otherwise, was interdicted by the laws of both countries and the law of nations; and the interdiction was enforced by the armies of both countries. The law and the policy of the Confederate States were binding on the citizens thereof, and the obligation was enforced by the power of those States, which was perfectly irresistible by the citizens thereof, however much they may have been disposed to make such resistance. The power of the United States was wholly insufficient to enable such citizens to make such resistance, or to afford them any protection against the consequences of making it. According to the facts as certified, the defendants were agents of the Confederate government, to exchange tobacco with the enemy for bacon, one of the prime necessaries of life, which could not be otherwise procured ; and it cannot be supposed that all the power of that government would not, if necessary, have been exerted to compel its citizens to afford all the facilities in their power to the only operation by which bacon could be procured for the use of the government, in that part of the country in which the plaintiff resided, during that period of the war in which the transaction in controversy occurred. So that, if it was not the patriotic duty of the plaintiff, as a good citizen of the government under which he lived, and which alone afforded him protection, to render any facilities he may possibly have rendered to the defendants, in regard to that transaction, he was, in contemplation of law, under the necessity of doing so. The law on this subject is so fully and clearly laid down by Judge Staples, in his opinion in the case of Newton's Ex'or v. Bushong f al. 22 Grat. 628, that it is only necessary here to refer to that case.

I will now proceed to consider the next question, which is :

Secondly. Did the circuit court err in overruling the motion of the defendants to set aside the verdict and grant them a new trial, upon the ground that the said verdict was contrary to law and evidence, as mentioned in their second bill of exceptions.

Now, the facts proved, which are certified by the court and repeated in the statement of the case, fully sustain the contract, as set out in the declaration ; and moreover show, what is not there set out, that the defendants were acting, as represented to the plaintiff that they were acting, as agents of the Confederate States government, and exhibited to him the written authority under which they professed to be acting. They also show, or strongly tend to show, that the plaintiff fully complied with the contract on his part; that he received the tobacco in his barn and took good care of it; that in consequence of the tobacco being there deposited his property was burned by the forces of the United States, whereby he sustained damage to the amount of $6,352, of which the defendants had due notice, and which they were requested to pay, but wholly failed and refused to pay to the plaintiff.

That the plaintiff's property was burned in consequence of the tobacco having been deposited in his barn, was expressly found by the jury, who were instructed by the court, on the motion of the defendants, that “ unless they should believe from the evidence that the property of the plaintiff was burned and destroyed by the forces or troops of the United States government, because the tobacco of the defendants had been stored in the

Vol. II.)

BIER v. DOZIER.

(No. 5.

houses of the plaintiff, then they must find for the defendants." On the contrary, they found for the plaintiff ; and the evidence well warranted them in so finding. It is more reasonable to believe that the property was burned because the tobacco had been deposited in the barn, than that it was burned because the plaintiff, who resided near the river, had been in the habit of entertaining at his house refugees from Maryland and Virginia, or because the members of a signal corps of the Confederate States, stationed near his house, had frequently been at his house ; or because some of Mosby's men had been there on one occasion. Such hospitalities were universally practised by our citizens residing near the river ; and if the property of every man who practised them had been destroyed, there would have been a general destruction of all the buildings in that locality. The plaintiff had not himself been engaged in the blockade business. There is not sufficient reason for believing that the property would not have been burned, if the tobacco had not been removed and concealed by the plaintiff. The plaintiff, if he was not bound as bailee, had certainly a right to try to save the defendant's tobacco; and if the effect of his effort has been to save the tobacco, but to lose his own property, the defence that he was not bound by his contract to try to save the tobacco by removing and concealing it, comes with very ill grace from the defendants. If he had not removed the tobacco, it would certainly have been lost by the defendants; and probably the plaintiff's property would still have been burned ; the loss of which would also have fallen on the defendants by the very terms of the contract. The plaintiff, by his act of removing the tobacco, at least saved them from one of these losses. But it was for the jury to decide the question of fact, upon the evidence; and they did expressly decide that the burning was in consequence of the tobacco having been stored in the houses of the plaintiff.

Then, the case of the plaintiff is fully made out by the facts proved. In other words, the verdict is clearly not against evidence. Is it against law ? Is there anything in the facts proved, which shows that the plaintiff is not legally entitled to recover ?

I have already shown that, considering the defendants as agents of the Confederate States government, in exchanging tobacco for bacon for the use of that government, the plaintiff might lawfully have contracted with them to receive the tobacco in his barn, even though he might thereby facilitate the operation by which that exchange was sought to be effected. And the defendants must be so considered in this case, whether they were in fact so

or not; because they so represented themselves to the plaintiff, and are estopped from denying that they were such agents. Indeed they do not now deny the fact, or attempt to deny it. I deem it unnecessary to say anything further on that subject.

But suppose the defendants were not the agents of the Confederate States government, to exchange tobacco for bacon, and that they were engaged in an unlawful act on their own account, in carrying or attempting to carry tobacco to Maryland, to exchange it for bacon: Is there anything in the act of the plaintiff, in receiving the tobacco in his barn, which makes the contract of the defendants, for whose benefit the act was done, unlawful, and enables them to get rid of their promise to indemnify hin against loss arising from that act ? Did he thereby become a particeps

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