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SIMPSON & CO. V. DALL, 70 U. S. 460 (1865)

U.S. Supreme Court

Simpson & Co. v. Dall, 70 U.S. 3 Wall. 460 460 (1865)

Simpson & Co. v. Dall

70 U.S. (3 Wall.) 460


1. Where a bill of exceptions at all fairly discloses the fact that the exceptions were made in proper time, this Court will not allow the right of review by it to be defeated because the bill uses words in the present tense, when the true expression of the court's meaning required the use of the past one, nor because the bill is unskillfully drawn, and justly open, philologically, to censure.

2. A party offering secondary evidence of the contents of papers must show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him; hence, where certain original letters had been passing between two attorneys

Page 70 U. S. 461

in a case, and one of the attorneys testified that he had looked over his papers for all such documents as related to the case, and that the needed letters were not among them; that he recollected thinking about the letters at the time he was looking over his papers, but (being under the impression that he had left them with his colleague) did not make "any special search for them."

And where the other attorney testified that he had had the letters, but was under the impression that he had returned them to the first attorney; that he had not examined his files of letters, and, not finding his letters among the other papers in his possession, supposed that the first attorney had them.

Held that the secondary evidence of the contents of the letters was wrongly given, the court assuming of course that the search was insufficient.

3. Where a solvent firm owing bona fide a debt learns -- though by irregular and perhaps improper means on the part of one of their number -- that the debt is about to be attached by a creditor of the person to whom they owe it, they may nevertheless pay the debt as soon as they please and in such securities, including their own negotiable note, as their creditor is willing to accept, and if the debt is actually paid, and so acknowledged by their creditor to be, the creditor of such creditor cannot make them pay it over again to him, though his attachment may thus have been provokingly defeated. Neither is there anything in the laws of Tennessee relating to the attachment of debts due by nonresidents that militates with this doctrine that a solvent man may at any time pay his just debts not attached by lawful process.

Dunham & Kearfoot, of Baltimore, were indebted on two

notes, amounting to about $3,000, to Dall, Gibbons & Co. of the same place, but were insolvent and did not pay. In this condition of things, Dall, Gibbons & Co. hearing that a house in Rogersville, Tennessee (Simpson, Duff & Co), which was solvent, owed money to the insolvent debtors just named, at Baltimore, set themselves at work to get payment, by attachment, from it. Addressing his letter to Rogersville, Tennessee, Mr. Cocke, their attorney in Baltimore, accordingly wrote -- first on the 16th of March, 1858, and then on the 17th -- to a cousin of his, Mr. Jones, a professional gentleman, who had been residing at Rogersville, but who was now in Florence, Alabama, a place three or four hundred miles away; from which place, however, it seemed that he was ready to return when any business worthy of so long a journey made it worth his while to do so; Mr. Cocke, who wrote the letters, being a member of the law firm of G. W.

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Howard & Co., at Baltimore, and the letters having been put under an envelope stamped externally with the business card of that partnership. Cocke was, moreover, a cousin of Mr. Simpson's wife. The letters were of such a character that Mr. Jones "might have felt authorized, if not directed, to consult Simpson & Co., whose debt he was requested to attach, in relation to the business."

On what exact day these letters reached the Rogersville post office did not appear. The regular course of the mail would have brought them there about the 19th or 20th of March, but if they happened to drop into a distributing office by the way -- "a thing which very often happened" -- they would have been delayed till the 21st or 22d. There was, of course, also, the ordinary chance of other accidents. When they did arrive, however, at Rogersville, they were put, as it turned out, into the post office box of this very firm of Simpson, Duff & Co. From the post office the letters went to the counting house of this firm. Here Mr. Duff, a member of the firm, opened and read them; and perceiving their contents, mentioned the fact of his having opened them and of what was in them to his partner Simpson, the senior and active partner of his firm. He then resealed them, and in a letter postmarked the 29th March, though dated the 27th, transmitted them in a friendly letter to Mr. Jones, at Florence, not telling him, however, that he had opened the letters or was possessed of their contents.

On the receipt of the letters, which got to Florence on the 1st of April, Jones came hastening up to Rogersville, getting there, perhaps, on the 4th. In the meantime, however, the Baltimore creditors having heard that Mr. Jones no longer resided at Rogersville, wrote, on the 25th of March, to another lawyer there, Colonel McKinney, placing the matter in his charge, and directing him to get the letters from the Rogersville post office. Going to the post office, he learned that the letters had been put into Simpson, Duff & Co.'s box. Following the matter up to Duff, he was told on the 29th that the letters had been forwarded to Mr. Jones, at Florence, "several days before." He then inquired

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of Simpson as to the state of their account with Dunham & Kearfoot, the insolvent firm at Baltimore; a matter which Simpson "did not know about exactly" -- "would look at his books for" -- inviting Colonel McKinney "to call the next day." On the next day, Colonel McKinney called, and learned that, on the 26th preceding, they had remitted $2,000 of their debt to their creditor house at Baltimore. They still owed, apparently, about $3,100. On the 7th of April, an attachment was issued; but it was too late to profit the persons for whom it was issued, for, on the 1st April preceding, Simpson & Co. had remitted the whole balance to their creditors at Baltimore; sending various negotiable notes for $1,600 of it, and their own negotiable note for the remaining $1,500. A receipt was returned on the 5th -- two days, of course, before the attachment issued.

In the meantime, and perhaps, as already said, about the 4th April, Mr. Jones presented himself at Rogersville. The first thing he did was to go to Simpson, Duff & Co., to consult with them about their debt, which he had been requested to attach. He showed to Mr. Simpson the two letters which he had received, and "asked Simpson's counsel in the premises." Simpson, without informing him that he was already apprised of what the letters contained, informed him that the claim had been "turned over" to another attorney, Colonel McKinney, who was now "trying to get an attachment on the amount his firm might owe Dunham & Kearfoot," and informed him also of the fact, more important to his principals, that the debt had all been paid. Mr. Simpson added, that he had felt himself under special obligation to pay the debt, as Dunham & Kearfoot had been good friends of his firm; that he had been repeatedly written to by them to pay up the amount due; that he had been trying to get exchange; that he had been waiting till the return of a certain debtor, whom he named; and for the payment of some other debts, so as to get exchange cheaper, and "that he hoped the attachment of McKinney would not catch what he had sent on to Baltimore."

Jones finding out otherwise that his letters had been

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opened, resealed, and that he had not been told of this, and apparently put out at losing a piece of business that might have been remunerative, declared himself "astonished." And the Baltimore firm of Dall, Gibbons & Co., conceiving that they had lost their debt wholly from Duff's having got possession of the letters, and in consequence of the knowledge which he had acquired by opening and reading what was not intended for him, now sued his firm, Simpson, Duff & Co., of Rogersville.

The declaration set out the existence of the debt, the writing of the two letters, that Duff, a member of the firm,

"took the same from the post office without any authority for so doing, and opened and read them, and had thus illegally, wrongfully, and fraudulently acquired a knowledge of their contents, and communicated the same to the other members of his firm."

And it averred, that after the firm had in this way obtained information of the intention of Dall, Gibbons & Co. to attach the debt, the said Simpson, Duff & Co. wrongfully, illegally, and fraudulently detained the letters aforesaid, and illegally and fraudulently failed, for eight days, to forward or to deliver the same to the said Jones; with the purpose, design, and intention of preventing them, the plaintiffs, from obtaining payment of the notes due them, and for the purpose of favoring Dunham & Kearfoot aforesaid. By means of which tortious act and several grievances, and by reason of the insolvency and bankruptcy of the said Dunham & Kearfoot, which occurred soon after, they, the plaintiffs, had lost the whole amount of their debt.

Mr. Duff, however, for himself and his firm, had also an account to give of the transaction. This account appeared partially in the testimony of Mr. Cocke, the attorney in Baltimore, who had written and sent the letters, partially in the testimony of Mr. Jones himself, and partially in a letter of Duff's own, written in reply to one which Mr. Jones had written to him, complaining of what Duff had done about the letters, and which letter of Duff's, in vindication of himself, Jones had made evidence by referring to.

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Mr. Cocke, the attorney, stated that the claim had been sent to Mr. Jones,

"because his intimacy and relationship with Simpson, Duff & Co. would enable him to ascertain from them the amount of their indebtedness to Dunham & Kearfoot."

Mr. Jones gave more full particulars. He testified that before studying law he had been a clerk in the house of this same Simpson, Duff & Co.; that Simpson had married his first cousin, and that he and Duff had "always, for years, been upon the most intimate terms of friendship" -- one evidence of which he signalized in the fact mentioned by him, that while he was at college

"he had carried on a correspondence with a young lady through the defendant Duff, and had authorized Duff to read his letters before giving them to the young lady."

He mentioned, also, the fact, that after the occurrence about the letters, he, Jones -- as yet knowing nothing about it -- had seen Duff constantly, and "for a part of the time slept with him at night." He stated, also, that Duff had "for years been authorized to take his letters out of the post office at Rogersville, and to forward them to him when absent," though he declared solemnly that he had "never authorized him to open his business letters during his absence."

The postmaster, too, of Rogersville, testified that it was his general practice, and had been for years, to put Mr. Jones' letters into the box of Simpson, Duff & Co.; that Duff boarded with him, the postmaster; and Jones himself testified, that had he been in Rogersville when the letters came, he would have gone directly to Mr. Simpson and told him about them, adding, "I think this from my intimacy with him, and from some directions to that effect in the letters themselves."

The letter of Duff to his friend of so many years was thus, in substance and material parts, expressed:

"ROGERSVILLE, 8 July, 1858"


"Yours is to hand, and but from my absence from home, at the time of its arrival, should have had an earlier notice. I have

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only to say it is true I opened the letter referred to. In so doing, I was actuated by none other than pure motives. The letter was from a place I believe you had no private correspondence with, and at the time, it occurred to my mind that it might be a business letter, and one that demanded prompt and immediate attention. This was the only reason I had for the act. Owing to the very friendly relations that had always existed between us, and feeling a lively interest in your welfare, I thought I might safely take this liberty, and in taking it I was prompted alone by the feeling of doing what I supposed would be of service to you in your absence. When I found that the letter was connected with our business, I mentioned it to Colonel Simpson, your relation and my partner, who expressed himself very sorry that it had been opened. I then resealed and forwarded it to you at once. If I committed an error, it was in not then informing you what I had done; this, however, was an error of omission only. Before opening the letter, I had no knowledge or intimation of its contents. You say you are 'astonished' at it. I am surprised that you should express astonishment, in view of our long intimacy, and in view of the fact that I have for so many years taken out your letters from the post office at your request, and forwarded them to you, when you were absent from Rogersville, as you were when I opened the letter. I sincerely thought I was doing right, and for the promotion of your interest. It distresses me to learn, from the disapprobation implied in your letter, that you condemn an act, which, had it been done by yourself under similar circumstances, I would not have censured. The fact that I opened the letter, did you, I trust, no harm, nor your client. I forwarded it at once, on finding, as I did, most unexpectedly, that the letter contained claims sent out in behalf of Dall, Gibbons & Co., against Dunham & Kearfoot, which they desired to secure by attaching a debt due from us to the house last named. When I first saw the letters, I did not known how long they had been in the store -- and seeing two letters with the name of G. W. Howard & Co. stamped on the envelopes, it occurred to me that they were business letters of importance, and required immediate attention, knowing that Howard & Co. did a considerable business in this section of the country, and not for one moment supposing that the business could have any connection with our house, as we at the time did not owe them anything. I knew, also, that Mr.

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Cocke, a member of the firm of G. W. Howard & Co., was a relation of yours, and it was natural for me to suppose that business from them would be placed in your hands, when they needed an agent at this point."

"I have reason to believe that Dall, Gibbons & Co., hearing that you had removed to Alabama, engaged the services of Colonel McKinney, and that he was at Knoxville, endeavoring to obtain an injunction as you came up from Alabama with the claims. If the business was transferred into his hands before you reached Rogersville, and when, as a citizen of Florence, you could not be expected to attend to it, I am really at a loss to perceive how my intended kindness can have operated to your prejudice, as we were making arrangements, and using every effort to settle our indebtedness of Dunham & Kearfoot, before we had any intimation of Dall, Gibbons & Co.'s claims. I repeat, however, that I am sorry this thing has occurred, and hope that this explanation will prove satisfactory, and that our former friendship may still remain unchanged. I trust I shall hear from you soon."

"Your friend, truly,"

"J. M. DUFF"

To sustain the plaintiff's case it was necessary, of course, to prove that the two letters had been written. Mr. Jones proved that he had received two letters enclosing the notes, describing the letters. The record then went on in substance thus:

"On the witness being asked to produce the letters, he stated that when he left Florence, a few days before this trial -- for the purpose of attending as a witness -- he looked over his papers for all such documents as related to this case. The letters were not among his papers. The witness recollects thinking about the two letters during the time he was looking over his papers, but being under the impression, that when the declaration was filed in this case, he had left them with J. R. Cocke, the plaintiffs' attorney, he did not make any special search for them more than for the other documents."

"The attorney, Cocke, being then introduced by plaintiff, testified that he had had the letters in his possession, while he was drawing the declaration in this case, but was under impression

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that he had returned them to Jones. The witness had not [Footnote 1] examined his files of letters before the commencement of this term of the court, in getting his papers together for the trial, and had not found said letters; and not finding them among the other papers in his possession, he had supposed the witness Jones had them."

"Upon this testimony the court permitted Mr. Jones to go on and testify as to his recollection of the contents of the letters; to which action of the court, in allowing secondary evidence while the existence of better evidence was shown, the defendants except. [Footnote 2] The witness Jones then went on to testify that one of the letters was dated Baltimore, 16 March, 1858, and the other, Baltimore, 17 March, 1858; that one of them contained two notes, drawn by the firm of Dunham & Kearfoot, dates and amounts not recollected; that one of the notes was due at the time it was sent to witness; that the other note was not due, but would shortly fall due. In one of the letters there was a statement of the amount due from Dunham & Kearfoot to the plaintiffs, Dall, Gibbons & Co. But the amounts and particulars of that statement the witness was unable to remember."

By the statutes of Tennessee, it should here be said, the property in Tennessee of debtors nonresident within the state is allowed to be attached only when such "nonresident debtor shall be removing or about to remove his property beyond the limits of the state." [Footnote 3]

The record went on in substance thus:

"The court, among other things not excepted to, charged the jury in effect, as respects material parts, as follows:"

"1st. That this debt was property within the meaning of the statutes of Tennessee; and that if the defendants were about to remove their property beyond the limits of the state, the plaintiffs would have had the right to attach it; that if the defendants, by arrangement with insolvent creditors, intended to pay portions of their debts, and convert other parts into negotiable securities, so as to defeat the power of the plaintiffs to collect their debts from such insolvent nonresident creditors, who were

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plaintiffs' debtors, such conduct would amount to a removal of the property from the limits of the state, and if such measures were in contemplation, the plaintiffs would have the right to attach such indebtedness, to prevent its removal and secure their debt."

"2d. That authority to forward a letter is not an authority to break it open; that if, even with good motives, the defendants broke open the plaintiffs' letter to their attorney without authority, it was a violation of the legal rights of plaintiffs."

"3d. That if the defendants detained the letters thus broken open, with the view and purpose (as charged in the declaration) to enable them to use the information so illegally obtained, and pay the debt and convert it into negotiated securities, before the plaintiffs could issue their attachment and secure their debt, such detention, with such motives, was an illegal, wrongful, and fraudulent violation of the rights of the plaintiffs, for which a right of action exists."

"4th. That in the event of the jury finding that the plaintiffs lost their debts by reason of the fraudulent conduct of the defendants, as above stated, and the insolvency of Dunham & Kearfoot, they would be entitled to recover the amount of their debts, such debts being not more than the amount due from Simpson, Duff & Co."

"5th. That all the partners who knew how the information was illegally and wrongfully obtained, and concurred in the subsequent acts to defeat the plaintiffs' attachment by payment to the insolvent debtors, were liable for the damages, and none but those who did."

A motion was afterwards made for a new trial, and the record went on in these words:

"The court overruled the motion for a new trial, to all which action of the court the defendants except, and tender this their bill of exceptions, which is signed and sealed by the court, and ordered to be made a part of the record in this case. "

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