# Iasigi v. Brown

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## Dissenting Opinion

    Campbell
United States Supreme Court
58 U.S. 183
Iasigi v. Brown
THIS case was brought up by writ of error from the circuit court of the United States for the district of Massachusetts.
The entire history of the case is given in the opinion of the court.
It was argued by Mr. Bartlett, and there was also a printed brief by Mr. Lawrence, for the plaintiffs in error, and by Mr. Lord and Mr. Merwin, for the defendants in error.
The counsel for the plaintiffs in error, made the three following points, of which the reporter has only room to give the argument upon the first.
I. That the rejection of the proffered testimony by the district judge, 'as immaterial, and as insufficient, when taken in connection with the other evidence, to authorize the jury to find a verdict for the plaintiffs,' and his further peremptory directions to the jury, without the consent of plaintiffs, to return their verdict for defendant, was unwarranted by law, and a departure from the practice and principles established by this court, and by the highest local tribunal, for the conducting of trials at Nisi Prius.
II. That if it could be deemed competent and lawful, in any case, to withdraw from the jury the determination of facts, where proofs legally admissible, and having a possible tendency to support the issue, have been introduced or offered, yet having regard to the character of the facts proved and offered for proof in this case, and the nature of the issue, the questions were purely questions for a jury.
III. That if in this case, resting, as it does, on charges of actual and not constructive fraud, involving, as it must, a question of intention, it be in the power of the judge, against the consent of plaintiffs, to determine the value of the testimony, and direct a verdict, (upon the ground that such course is equivalent to a demurrer to evidence,) even then the plaintiffs submit that, tried by the rules pertaining to a demurrer to evidence, the judge erred in directing a verdict for defendant.
1. The first proposition asks the judgment of this court upon a proceeding, not a mere indifferent matter of practice, but one that involves the substantial rights of parties; and that question is, whether in any case, after the introduction or offer of evidence legally competent, and having a bearing on the issue, it is the right of a judge at Nisi Prius, upon his view of the value of the proofs, peremptorily to direct, against plaintiff's consent, a verdict for defendant.
It assumes, what is apparent throughout the opinion of the district judge, that there was evidence to be weighed.
This question is to be determined, as well by the principles heretofore settled by this court, as by the 'modes of proceeding' of the State of Massachusetts, which by the acts of congress of 1789 and 1792 have been adopted into the courts of the United States.
A peremptory direction to a jury to return a verdict for a defendant, after the introduction of evidence competent to sustain the issue, cannot be distinguished in principle, though it differs in form, from an order of nonsuit, and so it has been held. Morgan v. Ide, 8 Cush. 420.
It has been repeatedly settled by this court that it is not in the power of the judge, without the plaintiff's consent, to order a nonsuit. Elmore v. Grymes, 1 Pet. 469; De Wolf v. Rabaud, Ib. 476; Crane v. Morris, 6 Ib. 598; Silsby v. Foote, 14 How. 218.
It has been settled in the same manner in Massachusetts by the latest case directly on the point, and to treated in the local books of practice. Mitchell v. New England Insurance Co. 6 Pick. 117; Colby's Practice, 225.
The ground assigned by this court is as follows: 'The circuit court had no authority to order a peremptory nonsuit, against the will of the plaintiff; he had a right, by law, to a trial by jury, and to have had the case submitted to them.'
The same principle prevails in England. 'It also appears that the plaintiff is in nowise compellable to be nonsuited after he has appeared, and therefore if he insist upon the matter being left to the jury, they must give in their verdict, &c.' 2 Lee's Dict. of Practice in B. R. and C. B., 958.
Such being the principles settled by this court and the state court, as to nonsuits, it remains to inquire what is the doctrine of both as to peremptory instructions to juries to return verdicts as directed, and it is submitted that there are numerous decisions in this court, by which it is settled that where there is any legally competent evidence offered, the case must be submitted to the jury with appropriate instructions. Thus in Greenleaf v. Birth, 9 Pet. 292, the court say, on p. 299: 'Where there is no evidence tending to prove a particular fact, the court are bound so to instruct the jury, when requested: but they cannot legally give any instruction which shall take from the jury the right of weighing the evidence, and determining what effect it shall have.' So in United States v. Laub, 12 Pet. 1, the court say: 'If the court erred in not giving the instructions asked on the part of the plaintiff, it must have been on the ground that no evidence, tending to prove the matter in dispute, had been given to the jury. For it is a point too well settled to be now drawn in question, that the effect and sufficiency of the evidence are for the consideration and determination of the jury; and the error is to be redressed, if at all, by application to the court below for a new trial.' United States v. Laub, 12 Pet. 1, 5.
Again: 'The first prayer of defendants to instruct the jury that upon the whole evidence the plaintiffs ought not to recover, if it might properly have been granted in any case in which any testimony was offered, certainly ought not to have been granted if any possible construction of that testimony would support the action.' Bank of Washington v. Triplett et al. 1 Pet. 25, 31. See also Chesapeake Ohio Can. Co. v. Knapp et al. 9 Ib. 541, 568; Scott v. Lloyd, 9 Pet. 418, 445; Roach v. Hullings, 16 Ib. 319, 323.
The doctrine of the supreme court of Massachusetts is well established, namely, that the court have merely the power to advise a verdict, even where a verdict, inconsistent with that advice, ought to be set aside. Davis v. Maxwell, 12 Met. 286; Morgan v. Ide, 8 Cush. 420.
If the rule of this court and of the state court be as is contended, it would be decisive of the case, but it is submitted that it is founded on principles essential to the safety of suitors.
It does not exclude the power of the judge to determine the legal competency or admissibility of evidence; but merely of peremptorily deciding as to its weight.
If the verdict be against his advice to the jury, a motion for new trial, see 12 Pet. 1, brings with it an opportunity of careful review-it may be with the aid of his associate-which the rapidity of a trial has not offered.
At all events, peremptory directions to return verdicts, upon the ground that they are analogous to a demurrer to evidence, are fatal to the losing party in a court of error, to which court the appearance, demeanor, and credibility of witnesses can never be transferred, and demurrers to evidence are not encouraged in this court. United States Bank v. Smith, 11 Wheat. 171.
The first two points of the counsel for the defendant in error related to the statute of Massachusetts, which, they contended, was similar to 9 George IV. ch. 14, § 6, called Lord Tenterden's act, the English cases under which were Lyde v. Barnard, 1 Mees. and W. 101; Haslop v. Fergusson, 7 Ad. and Ellis, 86; Swann v. Phillips, 8 Ad. and Ellis, 457; Devaux v. Steinkeller, 6 Bing. N. C. 84.
III. The representation, being now, of necessity, a statutory document, the construction of it belongs to the court.
And this, whether the interpretation is to be made on the paper singly, or on previously existing facts, sometimes to be taken into view, to put the court in the place of the writer in understanding his language.
The question does not become a mixed question of fact and law, unless there be evidence that the language was used in a special or technical sense, or the auxiliary facts be proved by uncertain or conflicting evidence. In the present case there was no evidence of the use of words in any special or technical sense; nor was there any conflict of evidence as to any fact needed in the understanding of the letters. Bell v. Bruen, 1 How. 183; Turner v. Yates, 16 Ib. 23.
IV. The plaintiffs are not entitled to recover, because of the terms of the letter of Mr. Curtis, to which it was a reply.
The letter of Curtis, of April 5, invites a reply, 'to be discreetly used by myself.'
1. It is widely without the statute, to allow the information to be used by another.
If, in Mr. Brown's letter, he had incorporated this phrase, 'my opinion is to be used by yourself only,' it would be no stronger in effect; and to allow a construction of such a letter to embrace all persons to whom it should be shown, could not be done without disregard to the statute, and to common fairness. This would not be to substitute a principal, but would introduce a multitude of strangers.
2. The letter of Mr. Curtis invites information to be 'discreetly used by myself.'
It cannot be that this commits the document to be used at the discretion of all to whom it shall be shown. Written to a discreet man, the reply, true or false, might be very harmless; to an indiscreet man, it might be the reverse. Written to one man, the utmost conceivable credit given on it might not exceed hundreds; to another, it might amount up to hundreds of thousands.
3. Written to Mr. Curtis, it would be limited, in Mr. Brown's understanding, to the use of it only in the business of his agency; operating only on the standing of the parties receiving credits from him, who might deal with the debtors inquired of, and thus be incapable of serious injury; but read by another, acting on his own eagerness or necessities to sell, it might prove ruinous.
4. Founding the action for false representation on the principle of holding a man to the consequences of his statements of credit, fairness requires that such facts should be made known to him as would enable him to see the consequences; and that he should not be held to unknown results which could not have been foreseen without a knowledge which might and ought to have been imparted.
5. The plaintiffs cannot set up that they were unaware of this limitation in the communication to Mr. Brown; the two letters are but one communication, and if they claim it at all, it must be with the limit under which it was obtained.
V. The letter of April 7 was, by its terms, exclusively limited to Mr. Curtis alone, by its being inscribed 'Confidential.'
1. The plain meaning of this word, as applied to a letter, is, that the communication is confided to him to whom it is addressed, and to no other person: 'to be kept in confidence, private; as, a confidential matter.' Webster's Dic.
2. This signification is confirmed, by its being superadded to the words of Mr. Curtis's letter; notwithstanding the promise, that the desired opinion would be discreetly used, and by himself, (which warranted any action in his own dealings,) the additional caution was, that the communication itself should be kept wholly personal between the writer and the addressed party.
The word 'confidential' is not capable of a sense, that permits it not only to be shown to a stranger, or any number of strangers, but to be used by him or them, and in his or their discretion, and acted on by him and them, at any future time, and to an unlimited amount. Such a sense of the word is not shown by any evidence, nor called for by any individual justice in this case, nor by any general principle of policy or justice.
3. The letter of 7th April was also 'confidential,' in consequence of its communications concerning the defendant's own involvements and connection with the parties inquired of.
4. The conduct of Mr. Curtis in submitting the letter to the plaintiff's inspection, on his urgent entreaties, has no bearing on the question. He, in strictness, violated the confidence placed in him; doubtless under the tacit obligation on the part of the plaintiffs to receive it, as he, Curtis, did, only in reference to the existing claims of Iasigi, and to quiet him.
VI. The subsequent letter of Brown, Brothers, and Co., of June 27 has no bearing on the construction of the letter of April 7.
1. It does not in terms, or by implication, refer to it. The phrase 'we continue,' &c., is fully warranted, as to all reference, by a public and general knowledge of the previous friendly relations and dealings of Brown, Brothers, and Co. with the parties referred to.
To introduce a paper by relation into instruments under the statute of frauds, express reference is necessary. Per Mr. Justice Nelson, Salmon Falls Manufacturing Co. v. Goddard, 14 How. 456, and cases cited there.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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