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DAVIS V. PATRICK, 122 U. S. 138 (1887)

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U.S. Supreme Court

Davis v. Patrick, 122 U.S. 138 (1887)

Davis v. Patrick

Argued April 14, 1887

Decided May 23, 1887

122 U.S. 138


Where a bill of exceptions is signed after the beginning of the term of this Court when the writ of error is returnable, and during a term of the circuit court succeeding that at which the case was tried, but was seasonably submitted to the judge for signature, and the delay was caused by the judge, and not by the plaintiff in error, the bill of exceptions will not be stricken out. chanroblesvirtualawlibrary

Page 122 U. S. 139

A written instrument between A and B held to constitute A the creditor of B, and not the partner, and not to make A liable to third parties on contracts made by B.

In a suit by a third party against A to make him liable on such a contract, where the written instrument is in evidence, an instruction to the jury is erroneous which overrides the legal purport of the instrument.

An instruction to a jury based upon a theory unsupported by evidence and upon which theory the jury may have rendered the verdict is erroneous.

This is an action at law brought in a court of the State of Nebraska, on the 24th of November, 1880, and removed, on the petition of the defendant, into the Circuit Court of the United States for the District of Nebraska by Algernon S. Patrick against Erwin Davis, to recover certain sums of money.

There are two causes of action set forth in the petition by which the suit was commenced. Under the first one, the plaintiff claims to recover $2,677.90, with interest from September 3, 1877, and $8,806.92, with interest from February 7, 1877. No question arises here as to the first cause of action. The second cause of action alleged in the petition is that on or about the 15th of November, 1873, the plaintiff was employed by the defendant to transport silver ore from the Flagstaff mine, in Utah Territory, to the furnaces at Sandy in that territory for a certain hire and reward then agreed upon therefor between the parties; that the plaintiff continued in that employment until on or about the 29th of November, 1875, at which date the account of services was settled and stated from the books of the defendant, and there was then found to be due to the plaintiff $26,539.54, and judgment is prayed for that sum, with interest from November 20, 1875. The answer of the defendant to the second cause of action is a general denial. At the trial before a jury, there was a verdict for the plaintiff, on the 20th of June, 1883, for $50,015.72, and a judgment accordingly, to review which the defendant has brought a writ of error.

It was not denied that the services were rendered. The question at issue was whether they were rendered for Davis or for an English company, owners of the mine, and the relations of Davis to the mine depended in part upon the construction chanroblesvirtualawlibrary

Page 122 U. S. 140

of the contract between him and the company set forth at length below in the opinion of the Court. M. T. Patrick, who employed Algernon Patrick, was in charge of the mine under the J. N. H. Patrick named in this contract, and also in the power of attorney which follows that contract in the opinion of the Court, to both of which reference is made for the better understanding of the case.

The plaintiff moves to strike the bill of exceptions from the record, for the reason that it was not allowed and signed in proper time. On the day the judgment was entered, June 25, 1883, a written stipulation between the parties was filed, providing that the defendant should have forty days to prepare and present to the court his bill of exceptions, and that the plaintiff should have twenty days thereafter to examine the same and make any suggestions of omission, addition, or correction thereto. On the 16th of August, 1883, the writ of error was allowed and filed, a supersedeas bond, duly approved, was filed, and a citation was duly issued, the writ of error being returnable at October term, 1883. On the 14th of September, 1883, the following written stipulation, entitled in the cause, was made between the parties:

"The bill of exceptions in this case having been partially settled by his Honor, Judge Dundy, and he desiring to be absent from the district for a month or more, and being unable to settle the remainder of the bill before leaving, it is hereby stipulated that the same may be settled and signed at any time before November 1, 1883, and that the record may be filed in the Supreme Court by the first of December, 1883, with the same effect as if filed at the beginning of the October term."

The term of the court at which the trial was had and the judgment rendered adjourned sine die on the 20th of October, 1883. The succeeding term of the court began on the 12th of November, 1883. The bill of exceptions was allowed and signed by the judge on the 8th of December, 1883, and was filed on the same day. The record was filed in this Court on the 26th of December, 1883. chanroblesvirtualawlibrary

Page 122 U. S. 142

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