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named Charleston as the intended port of entry. The invoices referred to in and annexed to the consular certificates named the plaintiff as the consignee. The bills of lading set forth that the kainit was to be delivered at the port of Charleston, at the Atlantic Phosphate Company's *wharf, on Ashley river, "unto Mr. J. C. Grafflin, or his assigns." The Hamburg declarations and invoices and consular certificates were presented by the plaintiff at the custom-house at Baltimore, and he made oaths to entries before a deputy-collector, at the custom-house there, that the goods were consigned to "J. C. Graflin, Charleston," and the papers were verified by the collector of customs at Baltimore, and were passed by the cashier of customs at that custom-house. These papers and the bills of lading, in this condition, for all the cargoes, (the bills of lading probably indorsed in blank by the plantiff, though this is not clear,) were put by the plaintiff into the hands of Dunan, at Baltimore, and Dunan sent them all to Pelzer, Rodgers & Co., before January 25, 1881, with invoices made out in his (Dunan's) name, for the five cargoes in question. On that day Dunan wrote to the company as follows: "Atlantic Phosphate Co., Charleston, S. C.-GENTLEMEN: I wish to withdraw all my invoices sent you with the documents for these cargoes, and substitute instead the inclosed invoices from Mr. John C. Grafflin, as all these cargoes came out in his name, and you will please return to me my invoices by return mail. In remitting for these cargoes, please remit in name of John C. Grafflin, through me. In the future I will always furnish invoice in favor of name in which the cargo comes forward. I inclose you herewith Mr. John C. Grafflin's invoices for the cargoes which are now coming forward, and for which you have the documents." In compliance with this request, the invoices which Dunan had sent were returned to him by the defendant, and it retained the invoices from Graflin. All this took place before any of the five cargoes arrived at Charleston. The following is the form of one of the substituted invoices: "BALTIMORE, January 15, 1881. Atlantic Phosphate Co., Charleston, S. C., bought of John C. Graffin: A cargo of genuine kainit, shipped per Batavia, Capt. G. Linde, to Charleston, S. C., weighing 400 tons, sold at $7.50 per ton," etc. The total amount of these invoices was $14,450.42. At this time, Pelzer, Rodgers & Co. had in their possession a power of attorney, dated August 31, 1880, executed by the plaintiff, appointing the members of that firm. five in number, by name, or either of them, his attorneys, to enter in his name, at the custom-house at Charleston, all merchandise which might thereafter be imported by him, or which might arrive consigned to him, or in which he might be interested as principal or otherwise. When the several cargoes arrived at Charleston, Mr. Inglesby, one of the firm of Pelzer, Rodgers & Co., acting under this power of attorney, entered them at the customhouse there in the name of the plaintiff. The entries described the merchandise as "imported by John C. Grafflin," and were signed, “JOHN C. GRAFFLIN, per THOS. S. INGLESBY, Atty.;” and Inglesby took the entry oaths, as agent of the owner, to the invoices and bills of lading presented on entry, and in each swore that, to the best of his knowledge, J. C. Graffin was the owner of the goods "mentioned in the annexed entry."
On these papers the defendant received and accepted the cargoes, and then refused to pay the plaintiff for them. He had confidence in the pecuniary responsibility of the defendant, and therefore was willing to deliver the cargoes, and waive any lien on them, and accept the defendant as his debtor. The defendant did not and does not make any complaint as to the quality of the kainit. No objection, based on a breach of the contract of May, 1880, as to the lateness of delivery, was made until after the five cargoes were received. The plaintiff, if advised at the time of any such claim, could have sold the cargoes elsewhere. He bought the cargoes, but he did not assume the contract, and he was under no obligation to fulfill it or to deliver the cargoes. But the defendant, in accepting the cargoes from him, on all the facts of the
case, as above set forth, entered into the relation of purchaser of the cargoes from him, to be paid for on delivery, without reference to any claim against Radde or Dunan for a breach of the contract of May, 1880. It was admitted, at the trial, that the damages for such breach were $10,000.
At the close of the trial the defendant prayed the following instructions to the jury, each of which was refused by the court, and to each refusal the defendant excepted: "(1) If, from the testimony, the jury believe that the Atlantic Company*never requested Grafflin to sell them these cargoes, and that there was no agreement between Grafflin and the Atlantic Company for the sale by Grafflin, and the purchase by the Atlantic Company, of these cargoes, the action cannot be supported, and the verdict should be for the defendant. (2) If, from the evidence, the jury are satisfied that the Atlantic Company purchased these cargoes from Radde, and that all that Grafflin did was to advance money to Radde or furnish a credit to him, and that he received the bills of lading from Radde as security for his advances, then Grafflin had only a special property, and his transfer of the bills of lading to the Atlantic Company was not a sale, and he cannot maintain an action for goods sold and delivered. (3) To produce a change of property from the shipper to the consignee, it is essentially necessary that the goods should have been sent in consequence of some contract between the parties by which the one agreed to sell and the other to buy. (4) If the jury believe that Graffin was aware of the contract of sale made by Dunan for Radde to the Atlantic Company, and that the transfer of the bills of lading by Grafflin to the Atlantic Company was in pursuance of, and in execution of, that contract, then there was no sale by Grafflin to the Atlantic Company, and the plaintiff cannot recover. (5) If Graflin had a lien on these cargoes for his advances to Radde, and parted with the goods without any agreement by the Atlantic Company to pay his advances, he has lost his lien and must look to the party to whom he advanced for his redress."
The circuit court instructed the jury as follows: "If the jury find, from the evidence, that the defendant, through Dunan, purchased from Radde, upon a contract made between Radde and the defendant, the kainit mentioned in the pleadings and evidence, and that the plaintiff made the advances to Radde for the purchase of the kainit, and had the bills of lading and invoices made out in his name as the proof of his ownership and the amount of his advances, and forwarded to Pelzer, Rodgers & Co., his power of attorney authorizing them to enter the said merchandise in his name as owner, they being the agents of the Atlantic Phosphate Company, and to deliver the same to the said company, which accepted the merchandise, then the jury must find for the plaintiff the amount of the plaintiff's advances on the cargoes in suit, although they may find that Radde or Dunan did not faithfully perform the contract spoken of above; the claim of the defendant for damages, if any, being against them and not against the plaintiff." To this instruction the defendant excepted.
The jury having come in with a verdict for the plaintiff for $15,450.42, with interest from the date of the delivery of each cargo, the defendant prayed the court to instruct the jury that interest was not due on open account. The court ruled that interest was due, and so instructed the jury, and the defendant excepted. The verdict was then rendered for $15,450.42, "with interest on the amount of each cargo from the date of delivery thereof, being five days after the date of entry," all objection to the form being waived.
The facts of the case, and the views before stated as to the relations of the parties, show that the propositions contended for by the defendant were properly rejected, and that there was no error in the instructions to the jury. Indeed, the court might properly have directed a verdict for the plaintiff. A contract of sale by Grafflin to the defendant, and of purchase by it from him, arose, in judgment of law, out of the undisputed facts. The plaintiff had
become the owner of the goods. The defendant, by the acceptance of the cargoes under the documents, was estopped from treating him as other than owner. It abandoned, so far as the plaintiff was concerned, its relation with Dunan and Radde, and its claim for damages, and cannot now alter the position of the plaintiff to his detriment. The "advances" spoken of in the instruction given were the same as the amount of the "invoices" there spoken of, made out in the name of the plaintiff. The amount of both was $15,450.42, and that was the amount of the recovery, being the sale price. There was no error in the form of the instruction, to the prejudice of the defendant. There having been a contract of sale, by mutual assent, and the contract having been executed by the vendor, by the delivery of the goods, the liability of the vendee to pay for them on delivery, in the absence of other terms, accrued, and the law raises an implied contract to pay interest, from delivery, on the purchase money, which was liquidated by the terms of the invoices in the name of the plaintiff, received and retained by the defendant. Such is the rule of the general commercial law. Dodge v. Perkins, 9 Pick. 368, 388; Foote v. Blanchard, 6 Allen, 221; Van Rensselaer v. Jewett, 2 N. Y. 135; Esterly v. Cole, 3 N. Y. 502. The case is not one of an open running account, but is of the class where there is a stipulated term of credit, which has expired.
We do not find anything in the decisions in South Carolina which would forbid the allowance of interest in the present case. In Rice v. Hancock, Harper, (S. C.) 393, in 1824, interest was disallowed on a book-account for goods, because, although there was a special agreement to pay for the goods in cotton in 60 days, and otherwise to pay interest after 60 days, there was no count on the agreement. A like decision was made in Schermerhorn v. Perman, 2 Bailey, 173, in 1831. In Lindsey v. Bland, 2 Speers, 30, in 1843, on a count for negroes sold, but no count for interest, interest was allowed after 12 months, because a 12-months note was to have been given. In Ancrum v. Slone, Id. 594, in 1844, the rule is stated that interest is allowable on a liability to pay money, if the sum is certain, from the time when, by construction of law, the payment is demandable. In Kennedy v. Barnwell, 7 Rich. Law, 124, in 1854, under a contract to pay a fixed sum for digging a canal, no time of payment being mentioned, interest was allowed from the completion of the work. In Kyle v. Laurens R. Co. 10 Rich. Law, 382, in 1857, interest was allowed on the value of cotton lost by a common carrier, on the ground that the cotton was a cash article at the place of delivery, and its value was taken on a cash sale, as cash lost by the plaintiff, who was, therefore, entitled to interest on the value. In Arnold v. House, 12 S. C. 600, in 1879, and in Childs v. Frazee, 15 S. C. 612, in 1880, interest was recovered against a, purchaser of land for cash at a judicial sale.
*In the present case, the objection made at the trial was not because of the want of a count for interest, but because interest was "not due on an open account." The case was not one of an open account, in the sense of any rule as to interest, and the holding of the court, that interest was due, was correct.
(114 U. S. 488)
HOPT v. PEOPLE.1
(April 20, 1885.)
CRIMINAL LAW AND PROCEDURE - ORAL INSTRUCTIONS UTAH CODE CRIM. PROC. 1878, 2257, CL. 7.
Under the Utah Code of Criminal Procedure of 1878, a judgment upon a verdict of guilty of murder, the record of which states that the court charged the jury, and does not contain the charge in writing, nor show that with the defendant's consent it was given orally, is erroneous, and must be reversed on appeal. WAITE, C. J., and HARLAN, J., dissent.
In error to the Supreme Court of the Territory of Utah.
This is a writ of error to reverse a judgment rendered by the supreme court of the territory of Utah, affirming, upon appeal from the district court of the Third judicial district of the territory, a judgment and sentence of death upon a conviction of murder. The decisions of this court, after former trials of the case, are reported in 104 U. S. 631, and 110 U. S. 574; S. C. 4 SUP. CT. REP. 202.
One of the errors now assigned in the brief filed in behalf of the plaintiff in error is that the record did not comply with the statute of Utah requiring that the written charges of the court should form part of the record. In the copy of the record of the district court contained in the record transmitted by the supreme court of the territory to this court, the statement relating to the charge of the court to the jury, and the exceptions to the charge, are as follows: On May 5th the case was finally argued by the counsel for either party, "and the court charged the jury; defendant's counsel except generally to the instructions given by the court on its own motion, and exception allowed; and a verdict of guilty of murder in the first degree was returned and entered." And on May 16th, “the time allowed by law for filing the bill of exceptions herein having passed, the court, upon application of defendant's counsel, refuses to further extend the time. Defendant excepts." The record also shows that on May 10th, after judgment and sentence, a notice of appeal was filed by the defendant with the clerk, and a copy of the notice served on the district attorney.
Appended to the brief filed in this court in behalf of the United States is an afidavit, taken January 7, 1885, of the deputy clerk of the district court, testifying that the counsel for the defendant at the trial in that court, who requested him to prepare the transcript of record on appeal to the supreme court of the territory, requested him to omit the written charge given by the court to the jury at the trial, and told him that no point was to be made by the defendant upon the instructions given by the court to the jury; that the transcript prepared in accordance with that request was delivered by the clerk to the counsel, and by them filed with the clerk of the supreme court of the territory; that by reason alone of that request the written charge was omitted from the record; and that no bill of exceptions was ever filed, or offered to be filed, or presented to the judge of the district court for settlement.
R. N. Baskin, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error.
*GRAY, J. By the Utah Code of Criminal Procedure of 1878, the charge of the court to the jury "must be reduced to writing before it is given, unless by mutual consent of the parties it is given orally." Section 257, cl. 7. Within five days after judgment upon a conviction, the clerk must annex together and file the papers necessary to constitute the record, including “(4) a copy of the minutes of trial; (5) a copy of the minutes of the judgment; (5) the bill of exceptions, if there be one; (7) the written charges asked of the court and refused, if there be any; (8) a copy of all charges given and of
IS. C. 4 Pac. Rep. 250, and 5 Pac. Rep. 564.
the indorsements thereon." Section 339. The defendant may either take exceptions to the instructions of the court to the jury in matter of law at the trial of an indictment; or he may, without a bill of exceptions, appeal from a final judgment of conviction, on any question of law presented by written charges requested, given, or refused, or any other question of law appearing on the record. Sections 309, 315, 358, 360. The manner of taking an appeal is by filing a notice with the clerk of the court in which the judgment is entered, and serving a copy thereof upon the attorney of the adverse party. Section 363.
The statute expressly and peremptorily requires that the charge of the court to the jury shall be reduced to writing before it is given, unless by mutual consent of the parties it is given orally; and, as has already been adjudged by this court in this case, the giving, without the defendant's consent, of any oral charge or instruction to the jury, is an error, for which judgment must be reversed. 104 U. S. 631. The requirement of the statute that the clerk of the court in which the trial is had shall include, in making up its record, a copy of all written charges, as well as of the minutes of the trial, is equally positive. The object of these provisions, requiring the instructions to be in writing and recorded, is to secure an accurate and authentic report of the Instructions, and to insure to the defendant the means of having them revised, in an appellate court. When the record shows that the jury were charged by the court, nothing can excuse the omission to set forth in the record a charge in writing, except express consent of the defendant that it should be given orally, and that consent must appear of record. The record must either set forth the charge in writing, or a waiver by the defendant of such a charge. If it does neither, it fails to show what is made by express statute an essential requisite to the validity of the conviction, and contains upon its face a fatal error, of which the defendant may avail himself by appeal, without tendering a bill of exceptions.
The duty of making up a complete record is the duty of the clerk; and the duty of seeing that the record contains everything that actually took place, necessary to support the conviction, is the duty of the district attorney. If the copy of the record made up by the clerk of the district court, and entered by the defendant in the supreme court of the territory, was defective in a material point, the district attorney might have moved in the latter court to have the defect supplied by certiorari or other proper process. The defendant and his counsel were under no obligation to cure, and cannot be held to have waived, any defect in the record, but were entitled to take advantage, either in the supreme court of the territory or in this court, of any error apparent upon the record as it stood in that court. Applying these principles to the record before us, the conviction cannot be supported. The record merely states that the court charged the jury, and does not state whether the charge was written or oral. If the charge was written, it should have been made part of the record, which has not been done. If it was oral, the consent of the defendant was necessary, and that consent does not appear of record, and cannot be presumed.
It is hardly necessary to add that the affidavit taken since the entry of the case in this court cannot be considered. The lawfulness of the conviction and sentence of the defendant is to be determined by the formal record, made up and transmitted as required by law, of what was done in his presence at the trial in open court; and not by ex parte affidavits of private conversations supposed to have afterwards taken place in his absence between the counsel and the clerk.
Judgment reversed, and case remanded, with directions to order the verdict to be set aside and a new trial granted,
WAITE, C. J., and HARLAN, J., dissented.