# Broome v. United States

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## Dissenting Opinion

    Campbell
United States Supreme Court
56 U.S. 143
Broome v. United States
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Northern District of Florida.
The facts are stated in the opinion of the Court.
It was submitted on a printed brief, by Mr. Charlton, for the plaintiff in error, and argued for the United States by Mr. Cushing, (Attorney-General.)
Mr. Charlton, for the plaintiff in error.
1. The first point we make is, that this bond never had a legal existence, so far as Macon was concerned. That he died before it was approved by the Comptroller of the Treasury; and having died before the time had arrived, when vitality was given to it by such approval, he was not a party to the contract; and his administrator is in no manner responsible for any default of Crane, in the discharge of his duties.
This writing obligatory belongs to that class of sealed instruments which, though not strictly escrows, yet are delivered, subject to a condition prescribed either by the parties, or the law.
By the act of Congress of 2d March, 1799, (1st vol. Little & Brown's edition, 705,) the bond of a collector of customs must be approved by the comptroller. If not so approved, it never becomes an official bond; the day of the date, we all know, is immaterial; and the manual delivery, even in such a case, coupled with the condition which the law itself annexes, does not give legal existence or vitality to the instrument. It is the approval by the Comptroller of the Treasury which breathes into it its legal life. It is that which shows the aggregatio mentium; it is that which makes it a contract. Commonwealth v. Kendry, 2 Barr's Rep. 448. Suppose that the comptroller had refused to approve this instrument, would it then have had any efficiency? Would it have held the persons signing as sureties, liable for any default of Crane? Certainly not; for, as to them, there had been no contract with the government; they had offered to contract, but the offer had been declined. Does not this show, conclusively, that the approval of the comptroller is the act which, for the first time, gives any life to this paper? But when that life was given to it, Macon was dead; the offer he had made to become a surety for Crane, had never been accepted in his lifetime; his death withdrew the offer, and his administrator is not bound. Chitty on Contracts, 6th Amer. Ed. p. 9, and note 2, p. 12, citing Pothier; that it may be retracted at any time before acceptance, p. 13; and that death retracts it, p. 14, citing Pothier. See, also, p. 15; Macher v. Frith, 5 Wendell, 112, 113. If a contract was made at all, it was with Macon, not with his administrator. But can a dead man make a contract? The authorities cited, refer, it is true, to unsealed instruments, but there is the same principle here. If the paper was actually delivered, it was upon the condition that it should be approved by the obligee; that it was a condition that the law attached to it, and there was no aggregatio mentium until such approval; and, in the mean time, death had retracted the offer.
We think, therefore, that his honor, in the court below, committed error in ruling that the approval of the comptroller was not the act that gave this instrument its legal vitality.
And we think, that even if we are not correct in that view, still, that he was in error in refusing the instruction asked for by the counsel for the defendant below; that it was the duty of the plaintiff below to prove that the said bond was delivered before the death of Macon.
I will not stop to argue that if this paper was signed by Macon in the presence of witnesses, but not actually delivered by him, that it never bound him. I think we will all agree that if he signed it in the presence of a thousand witnesses, who attested it as sealed and delivered, yet, that if he purposely kept possession of it himself, it did not bind him. It was, therefore, the duty of the plaintiff below to prove a delivery in the lifetime of Macon. If the fact existed, he could and ought to have proved it, as he held the affirmative of the issue. But he did not offer even prim a facie evidence. The possession of it by the comptroller would be evidence of its delivery; but when? Would it show a delivery in the lifetime of Macon? Would it not rather show that the comptroller did not receive it until the 31st July, 1837, the day on which he approved it; the presumptions of law being that an officer of the government discharges his duty with promptitude. 7 Howard, 132.
Though there may be evidence, then, that this instrument was belivered to bind Crane and Swain, there is none, not even prim a facie, that it was ever delivered to bind Macon. Its date does not afford that proof, for the date of a deed is not any vital part of it at all. It is equally good without a date, or with an impossible date, and this shows that a date is no legal part of it. If we were to hold otherwise, we would fall into the absurdity of being bound by the assertion of a sealed instrument that it had been made on the 30th of February. Whilst the law forbids you to contradict, add to, or vary any part of a sealed instrument by parol evidence, it allows you and requires you every day to prove the time of delivery, even though a date be stated, and even though the date of such delivery should directly contradict the alleged date of the instrument, thus clearly showing that it does not consider the date inserted as any part of the instrument.
There is not a title of proof that any officer of the government ever had the possession of this paper until the 31st July, and then, for the first time, arises the presumption of its delivery; there is no proof that any of these parties ever parted with the possession of this paper before the 31st July, 1837, when it reached the comptroller, possibly from the hands of an agent of Macon, whose power to deliver would end with the death of his principal; and it is worthy of remark that, even according to the very vague and unsatisfactory testimony offered by the United States in the court below, as to the time it would take to transmit by mail, or messenger, from Tallahassee to Washington, that this paper could have been forwarded after the death of Macon, and reached Washington by the 31st. The language of the witness being about eight or ten days for transmission by mail, and by individuals, seven or eight days. A bond may be delivered by the surety to his principal as an escrow. 4 Cranch, 221.
His honor, below, refused to give the instructions, as asked for, and ruled that the jury must be satisfied that the bond remained in the hands of Crane or the surety until after the death of Macon, thus virtually throwing the burden of proof upon as who held the negative, instead of requiring the plaintiff below to prove the act in pais, viz. the delivery necessary to give vitality to the instrument. 4 Wheaton's Rep. 77.
2. But if this bond ever was legally delivered in the lifetime of Macon, the question remains, did his principal, Crane, ever make such default in the discharge of the duties of his office, as would bind his sureties?
The condition of the bond is, that Crane 'shall continue truly and faithfully to execute and discharge all the duties of the said office according to law.'
What were the duties of his office according to law? The statute of Congress of 2d March, 1799, prescribes them. 1st vol. Little & Brown's edition, p. 642. See, also, 2d act of same date, 708, top part of page.
Is there here any authority on the part of government to authorize Crane to become their financial agent, and to authorize him to collect moneys for the government outside of his official duties; and if not, could his sureties be bound by such acts?
Where, then, was the authority to authorize him to draw upon, or receive money from Breedlove, the collector at New Orleans?
Be that as it may, by what authority or law can the United States make the sureties responsible for the money collected by Crane from Willis? Is it part of the official duty of a collector of customs to collect from his predecessor the amount due by him to government? If there be such law, let it be shown. His honor, in the court below, virtually concedes this point, but then he destroys the effect of such concession, by instructing the jury that, although the money might have been received outside of his official duty, yet, as the government adopted the act and charged the amount to him, it was of course conclusive upon him, and that his sureties could not, with any propriety, complain, because it appeared from his accounts that, at the time Crane received the $1,279.92 from Willis, the United States were indebted to him (Crane) in a much larger amount, and that for some time thereafter, and after debiting his accounts with that sum, the balance was still against the United States, and in favor of Crane, and that the defalcation of Crane, for which his sureties were sought to be held liable, accrued long after that period, and that it was therefore immaterial to the sureties, &c.
We respectfully say that there is a mingling up, in this legal caldron, of very discordant materials, and that the reasoning is neither logical nor conclusive.
We are not going to deny that if a man, without any authority, collects the money belonging to another, that other may, if he pleases, confirm the act and sue the party who has assumed to act as his agent, for the amount he has thus collected. And we do not, therefore, dispute the reasoning of his honor in the court below, when he held, that after the government adopted the act of the collection from Willis, and charged it to Crane, that it was, of course, conclusive upon Crane. What we object to is, the application of this principle, and the subsequent reasoning as to the sureties.
The government may, by an artificial and artistical way, make out the accounts between these parties, so as to obscure the true issue, but that cannot preclude us. It may make what rests it pleases in such accounts for such purposes, and it may, by inserting in the quarter ending the 30th September, an amount which their own evidence (that is, if there was any evidence at all of that receipt of money) shows was received on the 1st October. But the only true way of ascertaining whether the sureties are liable in this case, is to make out a general account of all sums received by Crane in his official capacity, and which it was his duty so to receive, and then to credit him with all payments which he properly made; and if the debits exceed the credits of such legitimate transactions, to that extent the sureties are responsible. When the judge below tells us, then, that although Crane had no right to receive this $1,279.92 from Willis, in his capacity as collector, (in other words, though it was not an act for which his sureties were responsible,) yet, that as the government owed him at that time, (a fact which, by the way, is inconsistent with their proof,) and for some time after, and as all his defalcations actually occurred afterwards, that, therefore, his sureties had no right to complain of this charge being made in the account, and that it was immaterial to them whether he had or had not received the sum in his official capacity, is, we repeat, not logical reasoning. If the sureties are charged in the general account with $1,279.92, which ought not to be charged to them, are they not so much the losers? Does it not deduct from the credits to which they are entitled, in the general account, running through all the time for which they were so responsible, just so much, and produce a corresponding effect upon the balance at the foot of the account? If this sum had not been charged against them, would there not have been exactly so much more due by the government to Crane as collector, for the payments legitimately made by him, as collector, and to the benefit of which indebtedness the sureties would be entitled?
It seems difficult to answer these questions negatively. What possible difference can it make, then, (even if it be so,) that Crane, after receiving this money, was still the creditor of the government? It is to the general result, at the close of his term of office, that we must look, and that general result, after deducting this illegal debit, must show, so far as the sureties are concerned, exactly so much more due by the government to Crane, as collector, than now appears. How, then, was it immaterial to the sureties? And besides this error of law, the judge also erred in withdrawing the questions of fact from the jury, whether this money had ever been received by Crane, by virtually telling them that it was an immaterial fact in the case, and that the surety (the only person sued) was not sought to be charged by it, thus taking away the fact itself from their scrutiny.
He was asked, by the counsel of defendant below, to charge that the receipt for $1,279.92, given in the 4th quarter of 1837, is not a sufficient voucher to support the item of same amount in the account of third quarter, 1837 of Willis's transaction. This the judge refused to charge.
We respectfully insist that the government officers had no right to charge this receipt at all either in the fourth or third quarter, against Crane, as collector. It was a fact that did not officially come within their knowledge; to which knowledge the law confines them, in making out their transcripts for evidence. Crane had never charged himself with it, as collector, but the government officer undertook to discharge the sureties of Willis for money for which, as far as we know, they were responsible, and to charge the sureties of Crane, without their assent, and this upon no other proof than the exhibition of a receipt purporting to be Crane's, but not proved to be so. We think that this does not come within the purview of the statute of 3d March, 1797, and that the transcript was not a sufficient voucher to support the item, the original receipt being the best evidence (if evidence at all) of the fact of payment. United States v. Buford, 3 Peters, 29; Cox and Dick v. United States, 6 Peters, 202. Nor is the case in 8 Peters, 375, hostile, for there Orr was entitled to draw on the the treasury for money, and the officers knew that they had paid it. But in our case Crane had no right to receive the money at all, nor did he authorize the charge; and the United States had no right to relieve Willis by charging to Crane and his sureties. See 3 Peters, 29. Hoyt v. United States, 10 Howard, 132, 133.
Mr. Cushing, for the United States.
First point omitted.
II. The official bond of the collector and inspector, Crane, and his sureties, Swain and Macon, bears date 2d June, 1837.
Indorsed July 14th, 1837, by the District Attorney of the United States, that the sureties are good and sufficient.
'July 31st, 1837: approved on the above certificate. George Wolf, comptroller.'
Arthur Macon died 24th July, 1837, after the approval of the sureties by the district attorney, but before the indorsement by the comptroller.
The administrator of A. Macon contended, that the surety died before delivery of the bond, and therefore that, as to him, it was not obligatory. To this end various instructions were moved by the administrator. The rulings of them by the court are to be seen, p. 48 of the record.
The several instructions on this subject, moved on behalf of the administrator, need not be here repeated. The charges of the court were correct; they left to the jury the question of fact of delivery, under all the circumstances, without any improper instruction as to the matters of law.
'A deed may be delivered by the party himself that doth make it, or by any other by his appointment or authority precedent, or assent or agreement subsequent.'
'And so, also, a deed may be delivered to the party himself to whom it is made, or to any other by sufficient authority from him; or it may be delivered to any stranger, for and in the behalf, and to the use of him to whom it is made without authority.' Touchstone, chap. 4, p. 57.
If a man makes an obligation to F, and delivers it to B, if F gets the obligation he shall have action upon it, for it shall be intended that B took the deed for F, as his servant.' 13 Viner, Faits, (K) plea 7, page 23.
'If a man delivers a writing as an escrow, to be his deed, on certain conditions to be performed, and afterwards the obligor or obligee dies, and afterwards the condition is performed, the deed is good, for there was traditio inchoata in the life of the parties; sed postea consummata existens, by the performance of the condition, takes its effect by force of the first delivery, without any new delivery.' Perryman's Case, 5 Coke, 84-6. S. P. Graham v. Graham, 1 Vesey, Jr. 272, 274; Froset v. Walch, Bridgm. 51 from Year Book 27 Hen. VI. 7.
'If I deliver an obligation or other writing to a man as my deed, to deliver unto him to whom it is made when he shall come to York, it is my deed presently; and if he deliver it to him before he comes to York, yet I shall not avoid it; and if I die before he comes to York, and afterwards he cometh to York, and he delivereth the deed unto him, it is clearly good, and my deed, and that it cannot be if it were not my deed before my death.' 13 Viner, Faits, (M) plea 7, p. 24; and cites Perkins, sect. 143.
'And where the deeds have a kind of double delivery, there they shall take effect from and have relation to the time of the first delivery or not, ut res valent; for if relation may hurt, and for some cause make void the deed, (as in some cases it may,) there it shall not relate. But if relation may help it, as in case where a feme sole delivers escrow, and before the second delivery she has married, or dieth, in this case, if there were not a relation the deed would be void, and therefore in this case it shall relate.' Touchstone, chap. 4, page 72, Relation; Butler & Baker's case, 3 Coke, 35 b, Resolve 1 and 2; Cooke's Adm'r v. Hendricks, 4 B. Monroe, 502-3.
A, being indebted to his bankers, executed a deed, purporting to be a mortgage to them, for securing the debt. After executing it, he delivered it to his attorney, who retained it in his possession till A's bankruptcy, which occurred about a month afterwards. The attorneys then delivered it to the mortgagee. Held, that this was a good delivery by A to the mortgagee. Grugeon v. Gerrard, 4 Younge & C. 119.
If a deed is delivered by the grantor to any person in his lifetime to be delivered to the grantee after his decease, it was a good delivery upon the happening of the contingency, and related back so as to divest the title of the grantor, by relation from the just delivery. Foster v. Mansfield, 3 Metcalf, 412; O'Kelly and others v. O'Kelly, 8 Metcalf, 436, 439. See Exton v. Scott, 6 Sim. 31.
A delivers a deed, as an escrow, to J § to deliver over on condition performed, before which A becomes non compos mentis; the condition is then performed, and the deed delivered over; it is good, for it shall be A's deed from the first delivery. Brook's Reading on St. of Lim. p. 150.
The present is not the case of an escrow; and if it were it would not avail the obligors in the bond; the relation of which is clearly stated by Chief Justice Parsons, in the case of Wheelwright v. Wheelwright, 2 Mass. Rep. 447, and repeated by Mr. J. Sewall, in Hatch v. Hatch, 9 Mass. Rep. 307, 309, as follows:
'The delivery is an essential requisite to a deed, and the effect of it is to be from the time when it is delivered as a deed. But it is not essential to the valid delivery of a deed, that the grantee be present, and that it be made to or accepted by him personally at the time. A writing delivered to a stranger, for the use and the benefit of the grantee, to have effect after a certain event, or the performance of some condition, may be delivered either as a deed or as an escrow. The distinction, however, seems almost entirely nominal, when we consider the rules of decision, which have been resorted to, for the purpose of effectuating the intentions of the grantor or obligor, in some cases of necessity. If delivered as an escrow, and not in name as a deed, it will, nevertheless, be regarded and construed as a deed from the first delivery, as soon as the event happens, or the condition is performed, upon which the effect had been suspended, if this construction should be then necessary in furtherance of the lawful intentions of the parties. See also 3 Coke on Littleton by Day, 36 a note 223. Perkins, sec. 137, 138, 142. Bushel v. Passmore, 6 Mod. 217; Maynard v. Maynard, 10 Mass. Rep. 486; Bodwell v. Webster, 13 Pickering, 411, 416; 4 Cruise, by Greenleaf, p. 28, note; Elsey v. Metcalf, 1 Denio, 323; Brown v. Brown, 1 Woodbury & Minot, 325; Doe dem. Gurnons v. Knight, 8 Dowl. & R. 348; Doe dem. Lloyd v. Bennett, 8 Car. & P. 124.
'The delivery of a deed may be inferred from circumstances,' per Mr. Justice Story, Gardiner v. Collins, 3 Mason, 401.

## 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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