Parks v. Ross

In some of the States it is the practice, after the evidence for the plaintiff is closed, for the defendant to pray the court to instruct the jury that there is no evidence upon which they can find a verdict for the plaintiff. Tliis is equivalent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is not legally sufficient to serve as. a foundation of a verdict for the plaintiff. Where the United States and the Cherokee nation agreed that the latter should emigrate across the Mississippi, and the former pay the expenses thereof, and- the Cherokees undertook to conduct the movement entirely by their own .agents, a person whose wagons had been hired could not hold the’agent who had hired them personally responsible. The owner of the wagons knew that the agent was a public officer, and dealt with him as such. Wherever a contract or engagement, made by a public officer, is connected with a subject fairly within the scope of his authority, it shall be considered to have been made officially and in his public character, unless the contrary appears by satisfactory evidence of an absolute and unqualified engagement to be personally liable.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia. It was an action brought by Parks for services rendered by Samuel Parks to John Ross, in the removal of the Cherokee nation to the western side of the Mississippi, in .the years 1838 and 1839. The bills of' exception set forth in extenso all the evidence offered by the plaintiff upon the trial. Some of this evidence consisted of long documents, which it is not deemed necessary to insert, although they were made parts of the bills of exceptions. Their contents will be sufficiently understood from the following narrative. In the year 1838, the government of the United-States was desirous to remove the Cherokee nation to their assigned habitation beyond the Mississippi River; and deputed General Scott to make an arrangement with them for that purpose. The Cherokees upon their part appointed an agerit with plenary powers, as appears from the following preamble to some resolutions adopted by them in 1840: — “And whereas,-these conditions being fully settled, the special agents of the nation, acting on the nation’s behalf, after having made divers appointments for the purpose of carrying it into effect, in order to condense the business, did delegate its entire superintendence to one of their body, John Ross, and by John Ross such persons were deputed for the management of the various departments, on account of the. nation, as were considered best quálified for the purpose,” &c. In order to ascertain the probable expense and amount of drafts necessary to be drawn upon the Treasury, General Scott caused thé following estimate to be made out. Estimate for the emigration of á party of one thousand Cherokees to their country west of the Mississippi, distance eight hundred miles, eighty days going: — Fifty wagons and teams, (twenty persons to each wagon,) at a, daily expense of $ 3.50, including forage,......■ . $ 28,000.00 Returning, .$ 7 each, for every twenty miles, . 14,000.00 Two hundred and fifty extra horses, forty miles each per day, . . ... . . . 1,000.00 Ferriages, &c.,........ 1,000.00 Eighty thousand rations? at 16 cents each, . . 12,800.00 Conductor, $ 5 per day,..... 400.00 Assistant conductor, $ 3 per day,... . ' . 240.00 Physician, $ 5 per day,..... 500.00 Physician returning, $15 for every hundred miles, 120.00 Commissary, $2.50 per day, . . . . 200.00 Assistant commissary, $ 2 per day, . . . 160.00 Wagon-master, $ 2.50 per day, . . . 200.00 Assistant wagon-master, $ 2 per day, . . . 160.00 Interpreter, $ 2.50 per day,..... 200.00 $65,880.00 Genéral Scott explained the contract in this way: — “ The understanding of the parties was common and distihct, that the eighty days allowed for the removal of each detachment, by land, was a mere assumption of a basis on which to calculate, for the moment, the advances to be made by the United States on account • of the movement, and to set it agoing. If the advances proved to be too great, the excess was to be paid into the treasury of the' nation ; if too little, on account of more time in the movement, the United States were to make up the difference from the trust fund.” -The Cherokees were formed into thirteen detachments, and the removal commenced about the 1st of September, 1838; but in consequence of sickness amongst them, a drought in the country through which, they had to pass, difficulties in crossing the Mississippi, and other embarrassments, the time of removal was extended to a much longer period than, eighty days. Samuel Parks was a citizen of the Cherokee nation, and John Ross hired from him four wagons and teams, to be attached to Detachment No. 11. On the 18th of May, 1840, John Ross, styling himself “ Principal Chief and superintending Agent of the Cherokee Nation for Cherokee removal,” presented ari .account to the proper office at Washington, claiming a balance due to the Cherokee nation of $ 581,346.88|. Amongst his vouchers was the following, being one of the expenditures incurred by Detachment No. 11, in which Parks was, with his teams: — For hire of'fifty-one wagons and teams, for 1,029. persons, from the -1st of November, 1838, to the 24th of March, 1839, inclusive, 144 days, at $ 5 , per day, $ 36,720; allowance of '40 days for returning, at $> 7 per day each, including travelling expenses, f> 14,280, ' . , . . . • $ 51,0,00.00 In November, 1840, the Cherokees passed some resolutions, amongst which were the following: — “ Resolved, That the authority vested in the special agents, and continued by the act of union between the Eastern arid Western Cherokees, passed at Illinois Camp-ground, on the 12th day of July, 1839, and by them conferred upon one of their members, John Ross; as superintendent, with a view to facilitate the duties required of them, be, and the same is hereby, approved arid ratified. “ And further resolved, (in support of the aforesaid authority,) That by the Cherokee nation, through their national committee and council in national council assembled, it is hereby ordered that the aforesaid John Ross.be, and he is hereby, directed and fully empowered to proceed to Washington city, and to urge a settlement of this claim with all possible expedition, and to apply for and receive from the government of the United States, in the name of the Cherokee nation, the balance due of $ 581,346.88£, as stated' in the account of the emigration claim, in order that the business growing out'of lt.jaaay be brought to a final close.” On the 6th of September, 1841, Mr. John Bell, then Secretary of War, decided upon this claim, and allowed it, with certain deductions. ' On the 17th of September, 1841,- Ross received .from the Treasury the sum of 486,939.50. ■ On tfie 13th of December, 1841, Ró'ss set,tied an accourit with Parks as follows: ■— 125,000, except the money received for return wagons; that no money ever was paid to any person, nor any claim ever presented by any person to the committee or delegates, for ‘ return wagon money ’; that the witness himself made the contract with the plaintiff’s intestate for the hire of his wagons, and no contract' was made for, and no reference made to, any return wagons, for it was understood they were all to remain in the nation; that plaintiff’s intestate married the sister of witness, and was a citizen of the Cherokee nation; that he sold and; disposed of his wagons and teams in the Cherokee nation, except one, with which he returned to the State of Tennessee,'for the purpose, as he stated to witness, of bringing out his family; he did not return, but died in Tennessee, and he never in his lifetime to 'witness, or with his knowledge, set up any claim for return wagons; and witness was present when the account of plaintiff’s intestate was settled, and afterwards, when the full balance was paid to the plaintiff ;• that there were various incidental expenses not estimated for originally, but which had to be paid by the nation, growing out of the delays and other causes in the emigration; that they were paid by the nation, ■ and witness does not know out of what fund they could have been paid, except out of the return wagon money; and witness believes, from the facts he has stated, that, the money so paid over by Ross to the nation, ¡and the incidental expenses of the emigration, were paid out of that fund.' “ And thereupon, and after the testimony of the said Richard Taylor had been given, the plaintiff further offered to read in evidence from a certain printed document, purporting to be Senate Document 298, 1st Session 29th Congress, two certain papers as follows, marked B and C, (copied in record,) and to lay a foundation therefor gave to the court the following evidence (evidence of JWke and J. R. Rogers, copied in record) ; and the defendant objected to the admissibility of the said papers so offered to be read in evidence, maintaining there was no sufficient foundation laid for them as secondary proof; but the court overruled his said objection, and permitted the same to be read in evidence, and the same was read accordingly, and the defendant excepts thereto, and prays the court to sign and seal this his bill of exceptions, which is done accordingly ; and the same is ordered to be enrolled according to the statute, this 10th day of April, 1848. “ W. Cranch, James S. Morsell.” (Then followed Mr. Burke and Mr. Rogers’s statements, which are omitted.) Plaintiff's First Bill of Exceptions'. i{ George W. Parks, Administrator of Samuel Parks, v. John Ross. “ And the evidence stated in the foregoing bill of exceptions, made part hereof, having been read to the jury, the plaintiff rested; and thereupon the defendant prayed the court to instruct the jury, that, upon the whole evidence aforesaid, if the same shall be believed by the jury, the plaintiff is not entitled to recover in this action. > “ Which instruction the court granted; to the granting of which the plaintiff, by his counsel, excepts, and prays the court to sign and seal this his bill of exceptions, which is accordingly done; this 11th day of April, 1848. “ W. Cranch, 1 James S. Morsell, James Dunlop. Plaintiff's■ Second Bill of Exceptions. “ George W. Parks, Administrator of Samuel Parks, v. John Ross. “ And thereupon, and upon the whole evidence in the said first and second bill of exceptions of said defendant contained, made part hereof, the defendant by his counsel prays the court to instruct the jury, that, if the same is believed by the jury to be true, the plaintiff is not entitled to recover in this action ; -which instruction the court granted; to the granting of which the plhintiff, by his counsel, excepts, and prays the court to sign, seal, and enroll this his exception, which is accordingly done, this 11th day of April, 1848. “ W. Cranch, James Dunlop.” The counsel for the plaintiff sued out a writ of error, and brought the case up to this court. contended that, apart from the testimony of Richard Taylor, it is clear from the evidence that the defendant claimed and received from the United States government the money “ in trust ” for those who were entitled to it by having furnished transportation ; that the plaintiff’s intestate .was one of those who furnished transportation ; and that defendant, having claimed and received the money, as trustee, is liable in this action. See 2 T. R. 370; Cary v. Curtis, 3 Howard, 247, 249; 1 Harris & Gill, 258. But the Circuit Court treated the defendant as the head or executive of a foreign and independent nation, and held that, having received the money as such, he was responsible only to the nation, and could not,jure gentium, be personally liable. This he contended was clearly a mistake both of the facts and of law, and referred to the Cherokee resolutions and to 5 Peters, 1. If it be contended, on the strength of Taylor’s evidence, that the defendant has paid over to the nation, and thereby discharged his liability, it is answered, that defendant could not discharge himself by any settlement with or payment over to the nation, after notice, and pending this suit. See 10 Peters, 158; Bend v. Hoyt, 13 Peters, 263, 267. But there is no evidence that defendant has paid over to the nation; the only evidence to that effect is found in Taylor’s testimony, as follows: “ Just before I left home to come to the United States, Mr. Ross made a final settlement with the nation of all the money received for the emigration.” This does not say that he paid over to the nation the amount received on account of Parks’s wagons, or that he showed any voucher of payment to Parks. He might have paid to the nation all except the amount due Parks, and said that he retained that on-account of this Very -pending suit. Moreover, Taylor’s evidence shows that the settlement was in writing. Then the written .account ór a duly certified copy should have been produced (1 Greenleaf’s Evidence, 82, 84, 88).. and the plaintiff had a right to rule out his evidence on this point. <. The statement made by the witness; Taylor, that “ the committee or delegates of the emigration never delegated their whole power to John Ross,” is contradicted by the Cherokee resolutions of the 11th of November, 1840; and by a comparison of his testimony with the other evidence in the case, it will be seen that all the material statements therein contained, affecting the plaintiff’s right to recover, were in conflict with, and disproved by, the' other evidence in the cause. Though called to the stand by the plaintiff, the latter was .not conclusively bound by his statements (11 Gill & Johns. 28 ;■ 1 Gill, 84; Greenleaf, § 443); nor-were the jury, whose province it was to decide between the conflicting evidence. It will be contended for the plaintiff, that, the evidence being contradictory, or conducing to different results, the effect of the instructions given by the Circuit Court was to withdraw from the jury their proper functions to determine the facts upon the evidence, and to take from them the right of weighing thé effect and sufficiency of the evidence; and that, in so far as the instructions given by the Circuit Court were founded on the testimony of the witness Taylor, disregarding the conflict between that and the other evidence in the cause, said instructions were founded on part of the evidence only, and therefore improper. Greenleaf v. Birth, 9 Peters, 298; United States v. Tillottson, 12 Wheat. 181; Hurt v. Miller, 3 A. K. Marsh. 336; Browning v. Grady, 10 Ala. 999; 2 Gill & Johns. 403. The defendant will endeavor to show that the court did not err in giving the instruction. There was no evidence legally, sufficient to authorize the jury in finding any undertaking on the part of Ross to pay plaintiff’s intestate for return wagons. There was no evidence from which the jury could infer that • Ross was personally liable therefor. There was no evidence tending to prove the material fact of any contract, expressed or implied, between Ross and the said Parks, by which Ross became liable to pay for the return wagons. The testimony in the cause is so slight and inconclusive, that no rational mind could draw the conclusion therefrom that Ross had come under obligation to pay the plaintiff the return wagon bill claimed by him. There was no evidence conducing to prove the issue on behalf .of the plaintiff. , The rule in Maryland on this subject is well settled. The Court of Appeals of that State has said : — It is the peculiar province of the court to determine all questions of law arising before them; and the undoubted right of. the jury to find all matters 6f fact when'evidence legally sufficient for that purpose is submitted for their consideration. Tyson v. Richard, 3 Har. & Johns. 109; Dale v. Fassett, Lessee, Ib. 119; Ford v. Gwinn, Ib. 496; Saunders v. Webster, Ib. 432; Benson v. Hobbs, 4 Har. & Johns. 285; Schwartz v. Tyson, Ib. 291; Benson v. Anderson, Ib. 315; Mercer v. Walmsley, 5 Har. & Johns. 32; and see Davis v. Davis, 7 Har. & Johns. 39; Coale v. Harrington, 7 Har. & Johns. 156; Gist v. Cockey, Ib. 140, 141; Barger v. Collins, Ib. 220; Riggin v. Patapsco Ins. Co., Ib. 295. Where there is a failure of evidence in respect to any one material fact involved in the issue, the evidence is .not legally sufficient' to warrant the jury in finding the issue it is offered to sustain; and it is the duty of the court to instruct them accordingly. Cole v. Hebb’s Admr., 7 Gill & Johns. 20. To have granted such an instruction would have been to have authorized the jury to find a fact, of which no testimony legally sufficient to warrant such a finding had been submitted to their consideration. Chesapeake Ins. Co. v. Allegre’s Admr., 2 Gill & Johns. 172. “ Where there is no evidence applicable to the issue, or tending to prove any material fact, a total failure of evidence, the court will direct the jury to find accordingly.” Davis v. Barney, 2 Gill & Johns. 404. “ From the view which we have taken of the testimony in this cause, we cannot approve the instruction given to the jury. They were instructed, that they might draw conclusions and •infer facts which the' evidence before' them was not legally sufficient to warrant them in finding.” McNulty v. Cooper, 3 Gill & Johns. 219. “ Conceding that the court'were right in admitting the evidence, their instruction is clearly erroneous, as they submitted to the jury the finding of a fact, of which no testimony legally sufficient for that purpose had been adduced before them. Thus they authorized them to .find that the profits of the real estate had been applied to the maintenance of Elizabeth, her brothers and sisters, when not a scintilla of proof had been offered to show such application. On the contrary, the accounts showed that he had charged himself with them as part of the personal estate, and had either paid them away in satisfaction, of debts and disbursements, or held them in his hands as part of the general balance of the intestate’s personal estate.” Burch v. Mundell, 4 Gill & Johns. 452. Here the proof is, he had applied the return wagon money to incidental expenses in part, and hád paid over the residue to the nation. Where a plaintiff offers no testimony, or such as is so slight and inconclusive that a rational mind cannot draw the conclusions sought to be deduced from it, it is the right of the court* and their duty, when applied to for that purpose, to instruct the jury that he is not entitled to recover. Morris v. Brickley, 1 Har. & Gill, 107. This prerogative of the court is never exercised-, but in cases where the evidence is so indefinite and unsatisfactory, that nothing but wild, irrational conjecture, or licentious speculation, could induce the jury to pronounce the verdict which is sought at their hands. Ferguson v. Tucker, 2 Har. & Gill, 189, 190. See further cases in Maryland. Sanderson v. Marks, 1 Har. & Gill, 252; Morris v. Brickley, Ib. 107; Caton v. Shaw, 2 Har. & Gill, 13; Smith v. Edwards, Ib. 411; Duvall v. Farmers’ Bank, 7 Gill & Johns. 78; and Gray v. Crook, 12 Gill & Johns. 236. And in this court. The error complained of is, that the Circuit Court did not give- an opinion on a point proposed ; the court was certainly bound, to give an opinion, if required, upon any point relevant to the issue. Douglass v. McAlister, 3 Cr. 297. But it. is equally clear, the court cannot be required to give to the jury an opinion on the truth of the testimony in any case. Smith v. Carrington, 4 Cr. 62. It is the province of the jury to weigh and decide upon the sufficiency of the evidence. Where there is no evidence to prove a material fact,’ the court are so bound to instruct the jury, when requested; but they cannot take from the jury the right of weighing the evidence, and determining what effect it shall have. Greenleaf v. Birth, 9 Peters, 299; S. P. Ches. & Ohio Canal Co. v. Knapp, Ib. 567, 568; Scott v. Lloyd, Ib. 445, 446. In trials at law, whilst it is' invariably true that the decision of questions upon the weight of evidence belongs exclusively to the. jury, it is equally true that, whenever instructions upon evidence are asked from the court to the jury, it is the right and duty of the former to judge !of the relevancy, and by necessary implication, to some extent, of the certainty and' definiteness of the evidence proposed. Irrelevant, impertinent, and immaterial statements a court cannot be called upon to admit as the groundwork of instructions; it is bound to take care that the evidence on which it shall be called to act is legal, and-that it conduces to the issue on behalf of either the plaintiff or of the defendant. Roách v. Hulings, 16 Peters, 323.