GURNEE v. BLAIR.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE NORTHERN DISTRICT OF ILLINOIS.

No. 988. Submitted December 1, 1879. — Decided December 8, 1879.

Railroad Company v. Blair, 100 U. S. 661, followed.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This case is not materially different from No. 987, Railroad Co. v. Blair, 100 U. S. 661, and

An order may be entered similar to the one in that case. Mr. S. Corning Judd and Mr. W. F. Whitehouse for appellants. Mr. E. C. Larned and Mr. W. C. Larned for appellees.

SEA v. CONNECTICUT MUTUAL LIFE INSURANCE CO. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 1066. Submitted April 29, 1880.- Decided May 10, 1880.

Carroll v. Dorsey, 20 How. 204, followed.

MOTION TO DISMISS.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This motion is granted on the authority of Carroll v. Dorsey, 20 How. 204, because of the omission to state with certainty the return day of the writ of error. The defect is one that is amendable under section 1005 Rev. Stat., but as no application is made by the plaintiff in error for leave to amend, and no citation has ever been served, we are not inclined, on our motion, to make any order in that behalf. Dismissed.

Mr. H. O. McDaid for plaintiff in error.

Mr. E. S. Isham and Mr. Robert T. Lincoln for defendant in error.

COWDREY v. VANDENBURGH.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. No. 1076. Submitted January 14, 1880. Decided March 8, 1880.

Cowdrey v. Vandenburgh, 101 U. S. 572, followed.

MR. JUSTICE FIELD delivered the opinion of the court.

The decree in this case is affirmed for the reasons given in the above opinion (Cowdrey v. Vandenburgh, 101 U. S. 572).

Mr. Joseph H. Bradley for appellant.

Mr. James G. Payne for appellees.

Affirmed.

GROAT v. O'HARE.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 35. Argued October 21, 1880.- Decided November 8, 1880.

This case is reversed because this court is not satisfied that the court below reached a proper conclusion on the facts.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. We are not satisfied from the evidence that the court below was right in directing the auditor, in stating the account of the partnership, to credit O'Hare with $2926.20, for items set out in Schedule D, annexed to the first report. It is clear to us that the items, amounting in the aggregate to $1650, for hire of horse and buggy, are not proven, but it is impossible, from the case as it now stands, to determine what amount, if any, should be allowed for these and the other claims in that schedule.

We think, also, that the parties should be permitted to produce further evidence in respect to the certificates amounting to $5600, which O'Hare, on his cross-examination before the auditor under the reference from the general term, admits he received from the Evans Concrete Company. It is clear that he should be now charged with this amount, unless it has already been included in the accounts as stated by the auditor. It is impossible to determine from the case as it is now presented whether he has been so charged or not.

We find no other errors in the action of the court below. The decree is reversed and the cause remanded with instructions to permit the parties, if they desire, to take further testimony in respect to the items of charge by O'Hare, as stated in Schedule D, and the certificates received by O'Hare from the Evans Concrete Company, and for such further proceedings, not inconsistent with this opinion, as shall seem to be necessary.

Mr. T. T. Crittenden for appellants.

Mr. R. T. Merrick and Mr. M. F. Morris for appellee.

BANK OF MONTREAL v. WHITE.

Reversed.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 61. Submitted November 8, 1880.- Decided November 22, 1880.

The refusal of a charge asked for which is wholly immaterial is no ground for reversal.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. There can be no pretence in this case that the note in suit was ever actually delivered to the bank as collateral security for past or future indebtedness. In the letter transmitting it, the bank manager was asked to discount it and place the proceeds to the credit of the manufacturing company. In that event the "overdraft kindly allowed on Friday" was to be charged against the credit, but it is nowhere, even in the remotest degree, intimated that if the discount was declined the note might be kept as collateral. The charge asked and refused was, therefore, wholly immaterial, and the judgment cannot be reversed because it was not given. No complaint can be made of the charge as given if this refusal was right. All the errors assigned hinge on this one proposition. Judgment affirmed.

Mr. Wirt Dexter for plaintiff in error.

Mr. Allan C. Story and Mr. Robert Hervey for defendant in error.

WHITE v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 82. Argued November 29, 1880.- Decided December 13, 1880.

When a charter party provides that the hirer of the vessel need not make good any loss arising from ordinary wear and tear, a finding by the court that repairs sued for resulted from ordinary wear and tear is a bar to recovery.

Money paid to a person on a vessel chartered to the government by the owner of the vessel cannot be recovered from the United States unless authorized by them.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The Court of Claims has found expressly that the condition of the vessel (when she was discharged from the charter, which made the repairs sued for necessary) resulted from the ordinary wear and tear of the service in which she was engaged under the charter party. This is conclusive against any recovery for these repairs. It was expressly provided in the charter party, that the government need not make good any loss arising from ordinary wear and tear. Although, if this one fact had been omitted from the findings, a different judgment might with more propriety have been contended for, with it found, the conclusion reached by the court below was unavoidable.

This finding is not inconsistent with anything else that appears

in the case. The vessel was sent up the Ashepoo River as a transport. She did land, under the orders of the general in command of the expedition, at a place selected by him against the objection of the master put in charge of her navigation by her owner, and she did ground and was badly strained while at the landing, but it is nowhere found that she would have grounded, or that she would have been unusually strained, if the master had obeyed the further order of the general and moved her away from the shore into the stream after the troops and horses were off. Certainly the government cannot be held responsible for losses arising from a disobedience by the master of the orders of a military officer in command of any expedition on which she was properly sent under her charter. She was chartered for war service and bound accordingly. If loss happened from a "war risk," that is to say, if the war was the proximate cause of the loss, the damage was to be made good by the government; but if it was caused by the refusal of the master to obey those in command of a military expedition to which the vessel was attached, the neglect of the master and not the war would be the proximate cause. This neglect of the master was a marine risk which the owner assumed. Damages arising from such a risk the owner was bound to repair under his covenant to keep and maintain the vessel tight, staunch and strong during the continuance of the charter. The findings, taken as a whole, are to be construed as meaning that the repairs. put on the vessel after she was discharged from service were not rendered necessary by any of the risks assumed by the government under the charter.

What has thus been said is applicable also to the claim for deductions from the pay of the vessel during the month of August, 1864, for lost time and repairs after her return from the Ashepoo River. The charter expressly provided that time lost in consequence of any breach of the covenants by the owner should not be paid for, and the court below in effect found that the damages repaired were caused by the neglect of the master to move the vessel out into the stream after the landing had been completed. No complaint is made in the petition of the amount of the charge. The right to recover is put entirely on the ground that the damages were such as the government was bound to repair, and, therefore, that the repairs were not chargeable against the owner. In the petition the quartermaster's and commissary's stores are included as part of the costs of the repairs, which was, no doubt, in accordance with the facts.

The money paid to Cannon for his services on board the vessel cannot be recovered from the United States. The claim was made by Cannon against the owner and not by the United States. It was voluntarily paid, with a full knowledge of all the facts. It may be that the payment was made to avoid a controversy with the United States, but that furnishes no ground of recovery. Silliman v. United States, 101 U. S. 465.

The judgment is affirmed.

Mr. John J. Weed and Mr. M. H. Carpenter for appellant.

Mr. Attorney General and Mr. Assistant Attorney General Smith for appellee.

MCLAUGHLIN v. FOWLER.

SAME v. THORPE.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

Nos. 94 and 95. Argued December 2, 1880.- Decided December 13, 1880.

In cases brought here from state courts this court can only look beyond the Federal question when that has been decided erroneously.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The only Federal question in these cases is whether the patents to the Western Railroad Company for lands within the limits of the Moquelomnes grant are valid. If that question was not decided by the court below we have no jurisdiction; if it was, the judgment was right, because in accordance with Newhall v. Sanger, 92 U. S. 761, brought here in 1875 for the determination of the same identical question. Such being the case the judgment must be affirmed. We can only look beyond the Federal question when that has been decided erroneously, and then only to see whether there are any other matters or issues adjudged by the state court sufficiently broad to maintain the judgment, notwithstanding the error in the decision of the Federal question. Murdock v. Memphis, 20 Wall. 591.

The judgment in each of these cases is affirmed on the authority of Newhall v. Sanger.

Mr. Henry Wise Garnett for plaintiff in error.

No appearance for defendants in error.