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BIRGE-FORBES CO. V. HEYE, 251 U. S. 317 (1920)
U.S. Supreme Court
Birge-Forbes Co. v. Heye, 251 U.S. 317 (1920)
Birge-Forbes Co. v. Heye
Argued November 13, 14, 1919
Decided January 12, 1920
251 U.S. 317
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT
A judgment for an alien enemy is objectionable only in so far as it may give aid and comfort to the other side in the war. P. 251 U. S. 323.
A judgment recovered in the district court by an alien enemy before he became such, the satisfaction of which was delayed by the other party's appeal until the intervention of war, may properly be reviewed during the war and affirmed with direction that the money be paid to the clerk of the trial court to be turned over to the Alien Property Custodian, and a motion to dismiss or suspend the action is correctly denied. Id.
Where a broker who became liable for his principal on several arbitration awards sued for their aggregate amount and was given a directed verdict and a judgment against the principal for the part which he
had then paid, and, having paid the remainder, sued again to recover that also, held that the former judgment was conclusive in the second action as to the validity of the awards, it appearing not only from the petition and judgment, but from other parts of the record of the former case, including the answer, the judge's charge and the opinion of the circuit court of appeals, that the validity of all the awards alike was there in issue and was sustained. P. 251 U. S. 323.
In determining whether a former judgment, given upon a directed verdict, involved the same issues of fact as are presented in a second action before the same judge in which both parties submit the point by requests for a peremptory instruction, especial weight attaches to the judge's decision. P. 251 U. S. 324.
The objection that the deposition of a plaintiff in the district court cannot be taken on his own behalf is waived by a stipulation waiving time and notice and allowing the officer to proceed to take and return it on interrogatories. Id.
That, in the return of foreign depositions, the officer commissioned did not put them into the mail and certify to the fact on the envelopes, as required by a state law, is immaterial where the war made compliance impossible and where the officer transmitted them in the only practicable way, though an American consul to the State Department, and thence by mail to the clerk. Id.
The six months' limitation of the German Civil Code § 477 on claims for defect of quality in goods sold does not apply to awards of arbitration based on such claims. P. 251 U. S. 325.
In an action to recover amounts paid on defendant's account in Germany, it is not error to take the value of the German mark at par in the absence of evidence that it had depreciated when the plaintiff made the payments. Id.
248 F. 636 affirmed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit by Heye, a cotton broker in Bremen, against the petitioner, a cotton exporter in Texas, to recover sums that Heye had to pay on its account. The payments were made upon cotton sold by Heye, as the petitioner's agent, to different buyers for alleged failure of the cotton to correspond to the description upon which the price was based. In pursuance of the contracts and the rules of the Bremen Cotton Exchange, the claims of the buyers were submitted to arbitration, which resulted in awards against the plaintiff for a total of 312,749.30 German marks, alleged to be equal to about $74,820.52. Before the present suit was brought, another one had been carried to judgment in the same District, in which that amount was claimed. At that time, Heye had paid only $36,610.96 of the awards. The judge directed a verdict for the sum that the plaintiff had paid and another item not now in issue. Heye now has paid the whole, and brings this suit to recover the amount of the later payment not embraced in the former judgment. He prevailed in the district court, and the judgment was affirmed with a modification as to payment by the circuit court of appeals. 248 F. 636. The main question on the merits is whether the former judgment was conclusive as to the validity of the awards, but that upon which the certiorari was granted was a preliminary one, as is shown by the fact that certiorari was denied in the former suit. 234 U.S. 759. After the case had been
taken to the circuit court of appeals, a motion was made to dismiss or suspend the suit on the ground that Heye had become an alien enemy by reason of the declaration of war between Germany and the United States. The circuit court of appeals, however, affirmed the judgment with the modification that it should be paid to the clerk of the trial court and by him turned over to the Alien Property Custodian, with further details not material here.
Upon the last-mentioned question, although it seemed proper that it should be set at rest, we can feel no doubt. The plaintiff had got his judgment before war was declared, and the defendant, the petitioner, had delayed the collection of it by taking the case up. Such a case was disposed of without discussion by Chief Justice Marshall speaking for the Court in Owens v. Hanney, 9 Cranch 180; Kershaw v. Kelsey, 100 Mass. 561, 564. There is nothing "mysteriously noxious" (Coolidge v. Inglee, 13 Mass. 26, 37) in a judgment for an alien enemy. Objection to it in these days goes only so far as it would give aid and comfort to the other side. Hanger v. Abbott, 6 Wall. 532, 73 U. S. 536. Such aid and comfort were prevented by the provision that the sum recovered should be paid over to the Alien Property Custodian, and the judgment in this respect was correct. When the alien enemy is defendant, justice to him may require the suspension of the case. Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 248 U. S. 22.
On the merits, the first question is whether the former judgment was conclusive as to the validity of the awards, assuming them to have been identified as the same that were sued upon in the former case. Taking merely the former declaration and judgment, it could not be said with certainty that some of the awards might not have been held invalid and that the defendant had not satisfied the
whole obligation found to exist. But we have before us the fact that the Court directed a verdict and the charge. From the latter, as also from the answer, apart from a general denial, it appears that the awards were dealt with as a whole, and that the objections to them were general. The objections were overruled, and the Court assumed that the awards were obligatory, but cut down the amount to be recovered to the sum that had been paid. The case went to the circuit court of appeals, and the same things appear in the report of the case there. 212 F. 112. (Certiorari denied, 234 U.S. 759.) In the present case, both parties moved the Court to direct a verdict. Beuttell v. Magone, 157 U. S. 154, 157 U. S. 157; Empire state Cattle Co. v. Atchison, Topeka & Santa Fe Ry. Co., 210 U. S. 1, 210 U. S. 8. Taking that and the fact that the same judge seems to have presided in both suits into account, we should be slow to disturb his decision that the issue was determined in the former one if we felt more doubt than we do. But we are satisfied the decision of the two courts below was right.
We shall deal summarily with two or three highly technical arguments urged against the affirmation of the judgment. One is that the depositions of Heye and a witness were not returned as required by the Texas statute providing for taking them, with a suggestion that, as Heye was a party, his deposition could not be taken at all. As to the latter point, it is to be noticed that it did not present an attempt to fish for information from the opposite party, and that an agreement was made that "time notice and copy are hereby waived," and that
"the officer may proceed to take and return the depositions of the witness on the original direct and cross interrogatories, but commission is not waived."
Whatever may be the general rule (as to which, see Blood v. Morring, 140 F. 918), we think that this objection is not fairly open. As to the mode of return not having followed strictly, the Texas
statute, because the officer to whom the commission was directed did not put the depositions into the mail and certify on the envelopes that he had done so, a sufficient answer is that that course was impossible owing to the war, and that the officer did transmit the depositions in the only practicable way. He gave them to an American consul and had them transmitted to the Department of State, and then through the mail to the clerk. The integrity of the depositions is not questioned, the statute was complied with in substance, and justice is not to be defeated now by a matter of the barest form.
We see no error in the finding that § 477 of the German Civil Code did not bar the claim. Assuming the question to be open, the court was warranted in finding that a six months' limitation to claims for defect of quality did not apply where the claims had been submitted to arbitration and passed upon. The same is true with regard to the taking the value of the German mark at par in the absence of evidence that it had depreciated at the time of the plaintiff's payments. On the whole case, our conclusion is that the judgment should be affirmed.
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