Levi Woodbury

“ The only evidence stated in the bill of exceptions is such as was adduced by plaintiff. The prayer is, then, substantially a demurrer to the evidence. Every fact which it conduced to prove, and every conclusion inferrible from those facts, is admitted; mala fides and oppression are fairly deducible from the facts proved. The jury has passed upon all the allegations in the declaration; and if they went beyond the testimony, the proper remedy was by motion for a new trial. The jury took the case without any instruction whatever from the court. ”

“ If the Circuit Court might lawfully have refused to award a repleader, then there is no error.
Gould on Pl. 509, § 32. A repleader for the immateriality of the issue is never awarded, it seems, for that party who tendered the issue. Cites Dougl. 749, per Buller. There can be no ground for a repleader, for the plea is substantially bad; there is no fact alleged in it which it could serve any purpose to deny, or to go to issue upon. ”

“ Because, when in tort or ex delictu, a set-off is not admissible, nor can infancy be pleaded as to one ex contractu, nor can a plea in abatement be sustained, that all concerned in the wrong are not joined, as it may be in counts on contracts, and a writ of injuiry must issue to ascertain the damages, which is often unnecessary in suits on contracts. A declaration is bad which unites a count in tort with one in contract. ”

“ Franklin made the contract as a public agent, and therefore never could have been made personally responsible for its non-execution by the House. Garland does not pretend that he was instructed or directed by the House to annul that contract; his interference was unauthorized, and therefore he is answerable.
The general principle is, that when an agent acts within the scope of his authority he is not personally responsible,-recourse must be had to the principal; but if he transcend his authority, he is personally liable. ”

“ So far from denying those acts, the plea entirely passes them by, and they are neither put in issue, nor a verdict returned upon them one way or the other. It is true, that, in some actions for a tort, a promise may be referred to in the declaration, which sometimes will constitute one material fact among several others. But it is only one, and not the whole, nor is it the most material fact; that being, in such cases, the misfeasance of the defendant. Nor does the verdict here find this one fact or promise such as averred in the inducement. There it is stated to be made by Mr. Franklin ”

“ How dangerous it would be to suffer a clerk to be intimidated and delayed in matters of such high importance by the notices of every man who might set himself up as entitled by a verbal contract with his predecessor.
Again, it is to be regretted that the record does not contain the fact that there was, at the time of Franklin's contract, a regular printer, duly elected by Congress, and entitled to all its printing (see Report of Committee, supra, 1st point) ”

“ The first bill, after stating certain evidence as given by plaintiff on the trial, says (p. 14) , 'upon the evidence aforesaid of the said plaintiff, defendant prays,' &c. It does not allege that this was the whole evidence given. This is a fatal and incurable defect in the case. For aught that appears, other and sufficient evidence may have been given, and the omission of it may have been the very reason why the instruction prayed was refused by the court. Plaintiff in error must establish the error in the judgment complained of; every reasonable intendment should be in favor of the judgment. ”

“ Various other cases analogous to this might be cited, which tend to show that the present plea is improper, but it is not deemed necessary, in this stage of the inquiry, to enlarge on that point; and I proceed to the next and more difficult question, whether such a plea, though bad on demurrer, should not be considered as good after verdict, and cured by the statute of jeofails.
As a general rule, all informality in a good plea is held to be cured by a verdict, and ought to be, in order not to delay, through a defect of mere form, what may seem to be just. ”

“ But if no such grounds appear, in consequence of the imperfections of the pleas and verdict, final judgment cannot properly be rendered; and the rules are inapplicable; and the judgment below should be reversed, so as to furnish an opportunity to remove those imperfections and reach the justice of the case by amendments or repleaders. And so far from the party not being permitted to enjoy this indulgence who committed the first fault, he is the only one who needs it, and in whose behalf, under the liberal spirit of modern times, all statutes of jeofails are passed. ”

“ It is not a suit brought upon a contract for the purpose of compelling its performance. In this case, Franklin acted as agent of the House in making the contract, and could not be held responsible for its execution. The suit is brought against Garland for an illegal, unauthorized act of his own, individually, in preventing the execution of the contract, and depriving plaintiff of the benefits which were to result to him from it, and remuneration for the expenditures he had made towards its performance. ”

“ Baily, 5 Munford, 251, judgment was reversed on the writ of error, the pleadings set aside after the plea, and a repleader awarded.
The 32d section of the Judiciary Act, before referred to, expressly empowers 'any court of the United States' 'at any time to permit either of the parties to amend any defect in the process or pleadings.' Lit. & Brown's ed. 91.
All know that a repleader is little more in substance than permitting an amendment. ”

“ Mr. Coxe, for defendant in error.
The first count in the declaration sets forth the resolution of the House of Reprentatives, directing the clerk to cause to be compiled a ninth volume of the laws, &c.; that being so directed, the then clerk, Franklin, employed the plaintiff, and agreed and contracted with him in pursuance of said resolution. This being an action for a tort, and the contract referred to being mere inducement, not the gist of the action, such statement of the authority to contract, and of the actual contract, is in accordance with the strictest rules of pleading. ”

“ Under these circumstances, then, repleading or something equivalent would seem proper to do justice between the parties, and to carry out the principle of the statutes of jeofails, so as not to prevent a judgment on the merits, because some 'slip,' as Lord Mansfield calls it, has happened on the part of the defendant in his plea. Rex v. Philips, 1 Burr. 295; Tidd, 828; Gould on Pl. 508, §§ 31, 40. If the right be not put in issue and may be, a ruling to permit it seems reasonable. ”

“ And that said Franklin knew and assented to the plaintiff's engaging said Gideon to do the said printing at the time of said contract; and that the defendant was advised by the clerks, before he made the contract with said Langtree, to be cautions and not get into difficulties by giving the work to another. And that no written contract with said Langtree, nor any memorandum thereof, appears in the office of said clerk. ”

“ The true meaning of these technical rules can be made rational and consistent, if they are held to apply to eases where good grounds are apparent for rendering final judgment. Then it may well be rendered against him who committed the first material fault in the pleadings ”

“ Swartwout, 10 Peters, 95) , though others consist of unsuccessful attempts to charge persons in tort for matters which originated and existed in fact only as contracts (Bristow et al. v. Eastman, 1 Esp. N. P. Rep. 172; Jennings v. Rundall, 8 D. & E. 335) , or which were mere nonfeasances (20 Johns. 379; 12 Mod. 488; 1 Ld. Raym. 466; 4 Maule & Selw. 27; Story on Agency, § 308) ; but because the issue and verdict present nothing in relation to any such misfeasance, and our opinion is intended to be confined to the questions on the pleadings, without any decision upon the merits. ”