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clerk of the court to the effect that this action had not been placed upon the trial calendar, nor any proceedings been had thereon from the March term, 1874, to the date of the certificate. The section already cited, regulating the proceedings in this class of cases, enacts that, after the protest shall have been duly filed in the land-office, "all proceedings, except the publication of notice, and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived." The land-officer to whom the defendant presented this certificate of the clerk, holding it to be sufficient evidence that "the adverse claim had been waived," proceeded to prepare the necessary papers on which the commissioner issued the patent, whose effect is now under consideration.
It must be admitted that if the land-officer had the right, while this action was pending in the courts, never dismissed, and yet undecided, to determine that plaintiffs' claim, adverse to defendants, had been waived, and to resume action in the case on that decision, the court was in error in holding the patent void as to the interfering claims. For, though the court of first jurisdiction finds facts sufficient to show that this delay was not the fault of plaintiffs, and in no way implied a waiver of their claim, these facts could only be shown probably in some proceeding directly to impeach the patent, or set it aside. At all events, if the land department had any right to decide that there was a waiver while the action was still pending and undecided, the presumption that it decided rightly must be conclusive in an action at law, and if this action is of that character it must be conclusive here. Whether this patent can be thus impeached under the course of proceedings in the Nebraska courts, we need not inquire here, for we are of opinion that the land-officers had no such power.
Looking at the scheme which this statute presents, and which relates solely to securing patents for mining claims, it is apparent that the law intended, in every instance where there was a possibility that one of these claims conflicted with another, to give opportunity to have the conflict decided by a judicial tribunal before the rights of the parties were foreclosed or embarrassed by the issue of a patent to either claimant. The wisdom of this is apparent when we consider its effect upon the value of the patent, which is thereby rendered conclusive as to all rights which could have been asserted in this proceeding, and that it enabled this to be done in the form of an action, in a court of the vicinage, where the witness could be produced, and a jury, largely of miners, could pass upon the rights of the parties under instruction as to the law from the court. It is in full accord with this purpose that the law should declare, as it does, that when this contest is inaugurated the landofficers shall proceed no further until the court has decided, and that they shall then be governed by that decision; to which end a copy of the record is to be filed in their office. They have no further act of judgment to exercise. If the court decides for one party or the other the land department is bound by the decision. If it decides that neither party has established a right to the mine or any part of it, this is equally binding as the case then stands. With all this these officers have no right to interfere. After the decision they are governed by it. Before the decision, once the proceeding is initiated, their function is suspended.
What, then, is meant by the phrase, "all proceedings shall be stayed until the controversy is settled or decided by a court, of competent jurisdiction, or the adverse claim waived?" We can imagine several ways in which it can be shown that the adverse claim is waived without invading the jurisdiction of the court while the case is still pending. One of these would be the production of an instrument signed by the contestant, and duly authenticated, that he had sold his interest to the other party, or had abandoned his claim and his contest. Or, since the act says that all proceedings shall be stayed in
the land-office from the filing of the adverse claim, and not from the commencement of the action in the court, within 30 days, such delay of 30 days is made by the statute conclusive of a waiver. A filing in the records of the court by the plaintiff of a plea that he abandons his case or waives his claim might authorize the land-office to proceed. But all these are very far removed from the assumption by that officer that, because there have been delays in the court, plaintiff has waived his claim. It is for the court, while it has jurisdiction of the case, that is, until it is decided or dismissed, to pass upon the rights of the parties,-to decide whether either party has lost his right by laches or failure to proceed with diligence, and to act accordingly. If defendant in this case was dissatisfied with the delay, he had all the remedies usual in courts in such cases. A motion to dismiss for want of prosecution would have relieved him if he was entitled to treat the case as abandoned. Or he could, in all the ordinary ways, require the plaintiff to go to trial or show good cause for continuance. But, while all this was in the hands of the court, with full power to do what was necessary to establish judicially the rights of the parties, the land-office could not resume control of the case upon the idea which might be there entertained of an implied waiver of the claim from delay in the court. It had no power over the case, and its action and its patent, so far as it affects the rights of plaintiffs, are void. The rejection of the patent as influencing the judgment of the court was not therefore an error.
3. Another error is assigned, growing out of the fact that the defendant, during the time this litigation was pending, located another claim, called the Victoria, on this lode, outside of and parallel with the St. George. Without notice to plaintiffs, and with no opposition, they procured a patent for this claim, and set it up against plaintiffs on the trial of this action. It is insisted that, though this claim does not come on the surface in conflict with the Uncle Sam location, it is in the same vein, and gives the right to pursue that vein under the Uncle Sam claim, and, being a patent about which there was no contest, it must prevail in this action. But without deciding the question of their right to pursue the vein under ground as against a prior valid location, by reason of the earlier date of patent, we concur with the supreme court that the right to that part of this very vein being in contest between these parties in reference to the Uncle Sam and the St. George claims, the decision of this controversy cannot be rendered nugatory by the introduction of a new claim by one of the parties, whose claim of right from the government for this same location is initiated while this litigation is going on. The parties were all in court. The subject-matter was before the court. The thing to be decided was the right to the conflicting claims to this lode. This was within the jurisdiction of the court, and any patent issued to one, or the other, or both these parties, under this proceeding for this property, must relate back to the date of their claims, and override the new patent. This result cannot be defeated by producing this new patent to destroy it. The claim was initiated by a party to this suit pendente lite, and must abide the result of the litigation in this case. These are the principles which control the decision of the case. There may be others suggested by counsel which are not here specially noticed, but they are not deemed sufficient to vary the result.
The judgment of the supreme court of Nevada is affirmed.
(115 U. S. 29)
WHEELER and others v. NEW BRUNSWICK & C. R. Co.1
(May 4, 1885.)
REVIEW OF DECISION OF COURT BELOW UPON THE FACTS IN THE CASE.
In Error to the Circuit Court of the United States for the District of Connecticut.
J. S. Beach, J. K. Beach, and E. J. Phelps, for plaintiff in error. C. R. Ingersoll and John W. Alling, for defendant in error.
. MILLER, J. The case was submitted to the court without a jury, and the* question to be decided here is whether on the finding of facts the judgment for plaintiff below is right. The action was brought by the railroad company on the following agreement:
"NEW HAVEN, January 31, 1880. "James Murchie, Esq., V. Prest. N. Brunswick & Canada R. R.-DEAR SIR: We have this day bought of you, as representative of the New Brunswick & Canada R. R. Co., one thousand tons old rails, for delivery in New York or New Haven, (at our option,) at $30, without duty, and delivery to be before August 1st; and also two (2) to six hundred tons, for delivery in New York or New Haven, between August 1st and October 1st, at $28, without duty. Terms in each case cash ag'st B. L., and insurance policy in satisfactory company. Very resp’y, E. S. WHEELER & Co." "NEW HAVEN, January 31, '80. "S. Wheeler & Co., New Haven: We hereby accept your order of this date, and will deliver rails at place, and on terms named. Resp.,
"NEW BRUNSWICK & CANADA R. R. Co.,
There was a tender of the rails by the railroad company, and a refusal to receive or pay for them by Wheeler & Co. The court finds as a matter of fact that the contract was a valid contract, and that Murchie had authority to make it on behalf of the company. The controversy in the case grows out of the following correspondence subsequent to the making of the contract by the execution and delivery of the foregoing papers:
"ST. STEPHEN, February 17, 1880.
"Mess. E. S. Wheeler & Co., New Haven-DEAR SIRS: I herewith inclose a copy of resolution passed at our meeting of directors yesterday. This confirmed the sale made by me to you' by the company, which was done on my arrival home. The car-wheels and chains that we had on hand were sold before I came home. We will have a large quantity by the time we ship our rails.
"Please acknowledge the above.
"NEW BRUNSWICK & CANADA RAILROAD COMPANY.
"Minute of a resolution passed at a directors' meeting, February 16, 1880. "Resolved, that the following sale of old rails, made by Mr. James Murchie to Messrs. E. S. Wheeler & Co., New Haven, Connecticut, be confirmed: Sold Messrs. E. S. Wheeler & Co. one thousand tons of old rails, for delivery in New York or New Haven, at their option, before August the 1st next, at thirty dollars ($30) per ton of 2,000 lbs., the duty to be paid by Wheeler & Co., and also two hundred to six hundred tons, for delivery in New York or New Haven between August 1st and October 1st, at twenty-eight ($28) per
18. C. 12 Fed. Rep. 377.
ton of 2,000 lbs., the duty to be paid by Wheeler & Co. In each case cash against invoice bill of lading. Insurance policy in satisfactory company. "True copy: F. H. TODD, Pres."
"NEW HAVEN, February 28, 1880. "James Murchie, Esq., Vice-Prest. New Brunswick & Canada R. R. Co., St. Stephens, Canada-DEAR SIR: We received duly your favor of the seventeenth inst., inclosing what purports to be a certified copy of a resolution adopted by the directors of the N. B. & C. R. R. Co., in reference to the sale of old rails made by you on behalf of that company to us on the thirty-first ulto. We assume that this resolution was passed merely as a matter of form, and a copy has been sent to us for our information solely, as no mention was made at the time of the negotiations that you acted subject to any approval by your company. We understood then, and understand now, that the sale made at that time on behalf of your company was an absolute and final unconditional sale. We do not understand, further, that this resolution was forwarded to us with the view of in any way modifying that sale in any of its terms. Furthermore, we understood at the time, and now understand, that the number of pounds in each ton of this contract, there being no contrary specification when the contract was made, was not 2,000 but 2,240. Old rails, like other scrap and like pig-iron, are bought and sold by the gross ton, not only in this market but in every foreign market. The custom of the trade fixing 2,240 as the standard number of pounds in a ton of old rails is universal, and can be excluded from operating on contracts only by distinct conditions fixing some other quantity. No such conditions were mentioned in the contract of your company with us, and we look, therefore, for the delivery of the rails within the dates named in the contract of your company, and ingross' not 'net' tons. We make no doubt but that your understanding of that contract is in accord with ours, and that in so far as this resolution fixes a different number of pounds for each ton, that it so fixes them by an oversight on the part of the directors. We hope to hear from you at your early convenience. "Very truly yours,
"E. S. WHEELER."
No answer was made to this letter, nor was any further correspondence had until June 14th, when the railroad company notified Wheeler & Co. by letter, that they had the 1,000 tons of old rails ready for delivery, and added:
"In your letter to James Murchie, as vice-president of our company, of February 28th last, you construe the contract as meaning that the ton of rails specified in that contract is 2,240 lbs., or the gross ton; now, without waiving any of our rights under that contract, but to avoid dispute, we tender you the delivery of the thousand tons at gross weight of 2,240 lbs. to the ton, and ask your determination whether the delivery shall be made at New Haven or New York. NEW BRUNSWICK & CANADA RAILROAD Co. "By F. A. PIKE, Special Agent."
*To which reply was made by the plaintiffs in error as follows
"NEW HAVEN, June 15, 1880.
"New Brunswick & Canada Railroad Co.-GENTLEMEN: Your letter of yesterday advising us that you are ready to deliver to us 1,000 tons of old rails, and asking us to designate a port of delivery, is received. As we do not recognize the existence of any such contract of sale as your letter contemplates, we have no instructions to offer upon the subject. It is true that we tried last winter to buy of you 1,000 gross tons of old rails at a price which would have netted us a large profit; but this we had to lose, as your company insisted
that they were selling net tons, and no contract resulted upon which we could base our sales. Very truly yours, E. S. WHEELER & Co."
A similar correspondence took place between the parties in August, in reference to the 600 tons tendered by the railroad company under the clause of the contract for two to six hundred tons to be delivered in that month. The court finds as a fact that each of the parties, at the time the contract was made, understood that the word "tons" meant tons of 2,240 pounds, and there was no misunderstanding between said persons (Wheeler and Murchie) as to the true intent and meaning of the contract. The court also finds that Murchie was duly authorized to make the contract on behalf of his company, and it rendered judgment for the plaintiff. (1) It is assigned for error that no legal contract between the parties to the action was established. (2) That if any contract existed at any time, the defendant in error was estopped from setting it up as against the plaintiffs in error by the pleadings and by the facts proved. (3) If such contract existed, it was repudiated and terminated by the defendant in error in such manner as to discharge the plaintiffs in error from further obligation. (4) Damages were more than plaintiff was entitled to recover.
As regards the first of these propositions, it is sufficient to say that the circuit court finds as a fact that there was a contract made. It also finds other facts which establish that proposition beyond controversy, namely, that Murchie and Wheeler, who signed and delivered the papers which constituted the written agreement, had authority to do so and to bind the parties to their action. The agreement, on its face, makes a contract. The court finds that there was no mistake or misunderstanding between Wheeler and Murchie as to the number of pounds which the ton should contain. It is, therefore, to be taken, as the foundation of the whole case, that when these papers were signed and delivered at New Haven, January 31st, a valid and completed contract, the one on which this suit was brought, existed between the parties to the suit.
The second and third grounds of error may be considered together. What was done by the railroad company which repudiated and terminated the contract and discharged Wheeler & Co. from its obligation, or estopped the railroad company from setting it up against them? It is to be observed that to annul or set aside this contract, fairly made, requires the consent of both parties to it, as it did to make it. There must have been the same meeting of minds, the same agreement to modify or abandon it, that was necessary to make it. All that was said or done, on which reliance is placed, for that purpose, is in the two letters, one written 17 days after the contract was completed and the other 28 days afterwards. The first of these, that of Murchie to Wheeler & Co., inclosing the resolutions of the directors of the railroad company, so far from repudiating the contract or denying its force and validity, by this resolution, in express terms, affirms it. Though the contract needed no ratification to make it binding, the company here ratifies what its vice-president had done. In doing this, it thought proper to place its own construction on the word "ton," as used in the contract; but neither in the resolution of the directors nor in the letter of Mr. Murchie is there the slightest intimation that a difference of opinion on this matter would be relied on as impairing the ob- 10 ligation of the contract. If they believed that their construction was the right one, it was the simplest piece of justice and precaution to suggest it, leaving the question, as by law it must be left, to a court to construe, if the difference was insisted on by either party. Finding that Wheeler & Co. did not concur in this construction, the railroad company waived their view of it, and tendered performance in accordance with the view of the other party.
Looking now to what was said by Wheeler & Co. in reply to this, it is still clearer that they did not entertain for a moment the idea of an abandonment