1870.

KEARNEY V. CASE.

with a copy of said interrogatories so filed, to | 96; Flanders v. Tweed, 9 Wall. 429, 430, 19
file cross interrogatories within ten days from L. ed. 679.
the service of such notice.

ALFRED KEARNEY, Plff. in Err.,

v.

CHARLES CASE, Receiver of the First National Bank of New Orleans.

(See S. C. 12 Wall. 275-285.) Statement of facts signed by counsel, when disregarded-waiver of trial by jury, what is— insufficient waiver.

A statement signed by the defendant in error and by the counsel for the plaintiff after the writ of error had been sued out nine months, although called a statement of facts, must be disregarded.

The right to a jury trial can be waived by express agreement in open court and by implied consent.

Where a party is present by counsel and goes to trial before the court without objection or exception, he has voluntarily waived his right to a jury, and must be held in this court to the legal consequences of such a waiver.

If there is nothing to show that the party complaining of the error was present by himself or counsel, at the trial, and no jury was called, it is error for the court to try the issues without a jury. [No. 150.]

Argued Oct. 18, 1871.

IN

Decided Nov. 13, 1871. N ERROR to the Circuit Court of the United States for the District of Louisiana. The petition in this case was filed in the court below, by the defendant in error, to reJudgcover upon certain promissory notes. ment having been given in favor of the plaintiff, the defendant sued out this writ of error. The case is fully stated by the court. Mr. Thomas J. Durant for plaintiff in

error.

Messrs. A. T. Akerman, Atty. Gen., Asst. Atty. Gen. Field, and B. H. Bristow, Solicitor Gen., for defendant in error:

The act of March 3, 1865, by its 4th section, provides a clear and simple mode by which parties who submit cases to the court without the intervention of a jury, may have the rulings of the court reviewed here. This statute applies to the Federal courts in Louisiana as well as elsewhere, and necessarily supersedes all previous legislative provision with reference to the Federal courts in that state, respecting the same subject-matter.

66.

Insurance Co. v. Tweed, 7 Wall. 51, 19 L. ed.

But it requires, as a condition upon which the parties may waive a trial by jury, and at the same time save to themselves the right of review as respects all questions of law arising out of the facts found by the court, the filing with the clerk a written stipulation, signed by them or their attorneys, waiving a jury.

Flanders v. Tweed, 9 Wall. 428, 19 L. ed. 679. In view of this requirement, it was held by this court, in the case last cited, that a copy of the stipulation should come up with the transcript in the return to the writ of error.

The agreed statement of facts, having been filed by the parties nearly a year after the rendition of the judgment and the issue and filing of the writ of error, cannot be regarded as a part of the record of the case nor as properly constituting anything on which error in the ruling of the court below may be assigned.

First, it is suggested that the cause should be tried here on the record as it stood when removed by the writ of error, which was the time of filing the writ.

Williams v. Norris, 12 Wheat. 121; Brooks v. Norris, 11 How. 207.

Second, irrespective of the circumstance that the statement of facts was not filed in the court below until many months after the issue and filing of the writ, it cannot be regarded as part. of the record (and therefore cannot be considered upon a writ of error) on other grounds; as to which, see Suydam v. Williamson, 20 How. 438-440, 15 L. ed. 982.

Besides, in Norris v. Jackson, 9 Wall. 125, 19 L. ed. 608, this court laid down the following rules, as a result of an examination by it. of the 4th section of the act of 1865, abovecited, in reference to cases where issues of fact, are submitted to the court:

"1. If the verdict of the court be a general verdict, only such rulings of the court, in the progress of the trial, can be reviewed as are presented by bill of exceptions, or as may arise on the pleadings.

The record does not show that any stipulation in writing, waiving a jury, was filed by the parties or their attorneys with the clerk in the court below, as required by the 4th section of the act of March 3, 1865. 13 Stat. at L. 501. The absence of such stipulation, however, is not to be regarded as affecting the regularity of the proceeding in the court below. For, independent of any statutory provision on the subject, parties certainly might, by consent, waive the trial of issues of fact by a jury and submit the trial of both facts and law to the court; it would not be a mistrial; but the appellate court could not regard the facts so found as judicially determined in the court below, nor "2. In such cases, a bill of exceptions cannot examine the questions of law, as if those facts be used to bring up the whole testimony for rehad been conclusively determined by a jury or So view, any more than in a trial by jury. settled by the admission of the parties. that legislation was necessary, not to enable the court, by agreement of the parties, to decide a disputed question of fact upon the evidence, but in order to preserve to the parties submitting a cause to a trial before the court, both as to law and fact, the benefit of a review or re-exam"4. That objection to the admission or excluination in the appellate court, of questions of law arising upon the finding of the inferiorsion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions."

court.

Guild v. Frontin, 18 How. 135, 15 L. ed. 290; Campbell v. Boyreau, 21 How. 226, 16 L. ed.

"3. That if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict, which raises the legal propositions, or they must present to the court their propositions of law, and require the court to rule on them.

In this case, it is to be observed, the court 395

found no special verdict, nor does the agreed statement, which was filed after judgment, even purport to have been submitted to the court, or to set forth the facts upon which its judgment was predicated. And in the latter respect, more especially, is the case under consideration clearly distinguishable from Insurance Co. v. Tweed, supra, where certain parts of the opinion of the court below, which appeared in the record, having been agreed to by the parties as containing the material facts of the case, were treated here as facts found by the court. The statement mentioned should, accordingly, be viewed as a nullity, upon the principle of the decision of this court on a similar point in Avendano v. Gay, 8 Wall. 376, 19 L. ed. 422.

As the court below had jurisdiction of the cause, and as there is no other question of law open to re-examination here, there being no bill of exceptions nor anything upon which error can be assigned, its judgment must be presumed to be right, and on that ground should be affirmed.

Guild v. Frontin, 18 How. 135, 15 L. ed. 290; Campbell v. Boyreau, 21 How. 227, 16 L. ed. 97; James v. Bank, 7 Wall. 692, 19 L. ed. 275. 280*] *Mr. Justice Miller delivered the opinion of the court:

This case was tried by the court without a jury, and the defendant, against whom a judg ment was recovered, brings it here by writ of

error.

No question arises on the process or plead ings; there is no bill of exception, and the plaintiff in error relies on what purports to be a statement of facts in the case to show the error of which he complains. That statement does not profess to be facts found by the judge. It says: "We agree that the foregoing shall be the statement of facts for the writ of error returnable to the Supreme Court of the United States." It is signed by defendant in error and by the counsel for plaintiff. The writ of error had been sued out nine months before this paper was signed and filed with the clerk.

If the

But what judgment must follow? transcript of the record contained the written agreement of the parties submitting the case to the court, as provided by the act of March 3, 1865, we should have no difficulty in affirming the judgment. But not only is there no such paper found, but there is no statement anywhere in the record that the parties did agree, either in writing or otherwise, to submit the case to the court.

*The judiciary act of 1789, § 12, de- [*281 clares that the trial of issues in fact in the circuit courts shall, in all suits, except those of equity and of admiralty and maritime jurisdic tion, be by jury. This provision and that found in the 7th Amendment of the Constitution, adopted after the judiciary act, namely: "that in suits at law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved," constituted the only legislative rule for the Federal courts, except in Louisiana, until the act of 1865. Undoubtedly, both the judiciary act and the amendment to the Constitution secured the right to either party in a suit at common law to a trial by jury, and we are also of opinion that the statute of 1789 intended to point out this as the mode of trial in issues of fact in such cases. Numerous decisions, however, had settled that this right to a jury trial might be waived by the parties, and that the judgment of the court in such cases should be valid. Bank of Columbia v. Okely, 4 Wheat. 235; Hiriart v. Ballon, 9 Pet. 156; Parsons v. Armor, 3 Pet. 425; United States v. Rathbone, 2 Paine, 578; Guild v. Frontin, 18 How. 135, 15 L. ed. 290; Suydam v. Williamson, 20 How. 427, 15 L. ed. 978; Kelsey v. Forsyth, 21 How. 85, 16 L. ed. 32; Campbell v. Boyreau, 21 How. 223, 16 L. ed. 96; Burr v. Des Moines Co. 1 Wall. 102, 17 L. ed. 562. Notwithstanding, however, the number of cases in which the waiver of this right is mentioned, and either expressly or tacitly held to be no objection to the judgment, it is remarkable that so little is said as to the mode in which this waiver shall be made to appear. In most of the cases it is somewhere in the record stated affirmatively that the parties did waive a jury, or did consent to the trial by the court without a jury. In the case of Bank of Columbia v. Okely, 4 Wheat. 235, the court held that there was an implied waiver of this right when the defendant made his note negotiable at the Bank of Columbia, there being in the charter of that bank a provision authorizing the collection of such debts by a summary proceeding, which did not admit of a jury trial. In Hiriart v. Balion, 9. Pet. 156, where a summary judg

It needs no argument to show that this court cannot look into such a paper as part of the record, nor make it the foundation of revising the judgment, though both parties consent to it. The case here must be tried on the rulings of the court below on what was before it, and this must appear by the record; and if the facts are to be considered they must appear by bill of exceptions, or by an agreed statement submitted to the court for its judgment, or by the finding of the court under the statute. It cannot be permitted that the parties, by consent, make up a case for this court after it has passed from the control of the court below.ment was rendered against a surety in an apThe case of Insurance Co. v. Tweed, 7 Wall. 44, peal bond, it was held that the defendant, by 19 L. ed. 65, is not a parallel case. There the becoming surety in a court whose rules [*282 statement, such as it was, was made by the provided for such summary judgment, had judge, and on it he founded his judgment. It waived his right to a trial by jury. It seems, was made and filed at the time the judgment therefore, that both by express agreement in was rendered; and, although defective in many open court, and by implied consent, the right respects, there was sufficient in it to present the to a jury trial could be waived. See Phillips v. legal propositions, if the confused character of Preston, 5 How. 290. But as was shown in the the paper was waived. This the counsel here recent case of Flanders v. Tweed, 9 Wall. 425, desired to do, and the court permitted. We 19 L. ed. 678, this court had held that no reare all of opinion, therefore, that the paper view of the decision of the court below could called a statement of facts must be disregarded. | be had of any ruling at the trial where the par

ties had consented to accept the court, instead by the judgment of the court on all matters of a jury, to decide issues of facts.

In this state of the law the act of 1865 was passed. The first two sections are devoted to prescribing the manner in which grand and petit juries shall be selected and impaneled in criminal trials. The 4th section enacts that issues of fact in civil cases, in any circuit court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or their attorneys of record file a stipulation in writing with the clerk of the court waiving a jury. It then pro ceeds to prescribe the mode of finding the facts, and the effect to be given to such finding, and provides for a review of the case by this court. The manner in which the record is to be prepared for this and the extent of the inquiry in this court are specifically pointed out.

submitted to it. This we understand to be the effect of the opinion in Flanders v. Tweed.

came up for trial; J. D. Rouse and Elmer and King for plaintiffs; G. L. Bright and Bradford, Lea, and Finney, for defendants; when, after hearing the pleadings, evidence and argument, the court considering the same, it is ordered, adjudged and decreed," etc.

But, although a written stipulation in the circuit court is essential to a review in this court, is the presence of the agreement or its copy in the transcript sent here indispensable? A copy of it should come up, as observed by Mr. Justice Nelson, and that is the more appropriate evidence of compliance with the statute. Still we are not prepared to say that if it shall affirmatively appear in any other part of the record proper, that such a writing was made by the *parties, that it will not be [*284 sufficient here. If, for instance, it is stated in the finding of facts by the court, or in the bill of exceptions, or in the record of the judgment, entry, that such a stipulation was made in writing, the record would show that the condition The question arises on this statute whether in which a review is allowed existed, and wethis mode of submitting a case to the court would not feel at liberty to contradict the recwithout a jury was intended to be exclusive of ord in this respect. In a case where there is all other modes, so that if there is no stipula- no evidence that it was submitted in writing tion in writing waiving a jury, there is error, under the statute, but the record shows affirmafor which the judgment must be reversed. Al- tively that the parties waived a jury, we hold though the language of the section might admit such evidence of waiver to be sufficient to sup-of that construction, it is not the only one of port the judgment, but not sufficient to authorwhich it is susceptible. As stated in the case ize a review of the rulings of the court at the already referred to, of Flanders v. Tweed, the trial. But the record before us contains no main purpose of the act, undoubtedly, was to statement that the parties agreed in writing toenable the parties who were willing to waive a submit the case to the court, nor any express jury to have the case reviewed on writ of error statement that they waived a jury at all. The when tried by the court alone. This was ren-language of the judgment is that, "this cause dered necessary, as shown by Mr. Justice Nelson in the opinion in that case, by the former 283*] decisions, based on the idea that in such cases the court did not sit as a court of law, but as quasi arbitrators. To remove this difficulty, the statute provided a mode by which the parties who agree to waive a jury should Is this court at liberty to infer from the have the benefit of a writ of error to the rulings entry a waiver of the right to a jury trial? of the court on questions of law. The language When we consider the cases already cited, in of the section is that the stipulation may be which such a waiver has been implied, and that filed with the clerk of the court, which is un- the right to have a jury when a party demands. doubtedly designed to enable the parties to it, is so universally known and respected, we make agreements in vacation; and it is required think that it is almost a necessary inference, to be in writing, to prevent either party de- where a party is present by counsel and goes. manding a jury unexpectedly at the trial. In to trial before the court without objection or those courts where juries are called from a exception, he has voluntarily waived his right. great distance and detained at a heavy sacri- to a jury, and must be held in this court to the fice, the courts usually give jury trials the pref- legal consequences of such a waiver. Phillips: erence. The benefit, therefore, of an announce- v. Preston, 5 How. 290. But we are not prement by which the number of these trials is di-pared to go further. minished, and the case placed in an attitude to be taken up at the convenience of the court and the parties, is obvious. We cannot believe that Congress intended to say that the parties shall not, as heretofore, submit their cases to the court unless they do so by a written stipulation, but that it was the intention to enact that if parties who consent to waive a jury desire to secure the right to a review in the Supreme Court of any question of law arising in the trial, they must first file their written stipula tion, and must then ask the court to make a finding of such facts as they deem essential to the review, and ask the ruling of the court on points to which they wish to except. If this is not done the parties consenting to waive a jury stand as they did before the statute, concluded

If the state of the pleadings presents issues of fact to be tried, and there is nothing to show that the party complaining of the error was present by himself or counsel at the trial, and no jury was called, we think it is error for the

court to try those issues without a [*285 jury, because there can be no presumption that the party has waived his legal and constitutional right to have a jury.

The record before us presents, in the light of these views, a case where the parties consented to waive a jury, but did not take the steps. necessary to secure the right to a review of the findings of the court as provided by statute.

There is, therefore, no error of which we can take cognizance, and the judgment of the Ciruit Court is affirmed.

THE BROOKLYN LIFE INSURANCE CO., changed. The defendant's first prayer ought,

|

General agent of insurance company can waive a condition, that policy is not binding until premium is paid, by an unconditional delivery of the policy. Southern Ins. Co. v. Booker, 9 Heisk. 606, 24 Am. Rep. 344; Bochen v. Williamsburgh Ins. Co. 35 N. Y. 131; Trustees of Baptist Church v. Brook-pliance continues the obligation. Receipt of an lyn Fire Ins. Co. 19 N. Y. 305; Goit v. National Protection Ins. Co. 25 Barb. 189.

Messrs. George C. Maund and Archibald Stirling, for defendant in error:

If any language in the policy or application, properly interpreted, amounts to a condition that the policy should not take effect until payment of the cash part of the premium, such condition was waived.

Boehen v. Ins. Co. 35 N. Y. 131.

In the above case it was held, that the delivery of a policy, without requiring payment, raises a presumption that a credit is intended, and that where a credit is intended, the policy will be valid though the premium has not been paid.

Goit v. Ins. Co. 25 Barb. 189; Sheldon v. Ins. Co. 26 N. Y. 460; Wood v. Ins. Co. 32 N. Y. 619; Whitaker v. Ins. Co. 29 Barb. 312; Brag-| don v. Ins. Co. 42 Me. 262; Trustees of First Bap. Ch. v. Brooklyn Ins. Co. 18 Barb. 69, 19 N. Y. 305; Post v. Ins. Co. 43 Barb. 351; N. Y. Cent. Ins. Co. v. Nat. Protection Ins. Co. 20 Barb. 474.

It must be remembered that Miller had delivered his notes for a large portion of the premium; was he not liable upon these notes? If so, must not the company have incurred a corresponding obligation upon the policy?

Bragdon v. Ins. Co. 42 Me. 262; Whitaker v. Ins. Co. 29 Barb. 312; Com. Mut. Ins. Co. v. Union Ins. Co. 19 How. 323, 15 L. ed. 638.

There can be no longer any doubt of the authority of the general agent to waive a condition requiring payment as a prerequisite to the validity of the policy.

Bochen v. Ins. Co. 35 N. Y. 131; Goit v. Ins. Co. 25 Barb. 189; Wood v. Ins. Co. 32 N. Y. 619; N. Y. Cent. Ins. Co. v. Nat. Ins. Co. 20 Barb. 474; Sheldon v. Ins. Co. 26 N. Y. 460.

In considering the authority of general agents to waive the condition of the policy, attention must be given to the distinction recognized by all the decisions, between capital stock companies, of which this was one, and those established upon the mutual plan.

Brewer v. Ins. Co. 14 Gray, 203; Baxter v. Ins. Co. 1 Allen, 296.

Second. But in this case there is neither in the policy nor in the application any condition that the policy shall not attach until payment of the cash premium.

To show the converse of this, two clauses are relied on by the plaintiff in error; one in the policy and the other in the application.

That in the policy is as follows, to wit: "In case the said Helen A. M. Miller shall not pay or cause to be paid, the premium as aforesaid, on or before the day herein mentioned for the payment thereof, or any note or notes which may be given to and received by said company in part payment of any premium, on the day of days when the same shall become due, or in case the person whose life is insured by this policy, shall, etc., etc., then, and in every such case, the company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease, be null, void and of no effect."

This clause (intended to annul the policy after it shall have gone into effect) clearly refers not to the first cash premium, but to some other premium or note to become due after the policy shall have attached.

This was held by the court below to be its true interpretation.

The other clause relied on is in the application, and is as follows, to wit:

"It is agreed by the undersigned that the policy of assurance hereby applied for shall not be binding upon this company, until the amount of premium, as stated herein, shall have been received by said company or some` authorized agent thereof, during the lifetime of the party therein assured.

This clause cannot affect the case in any way, because it refers to the policy, and there is nothing in the policy to which it can be made to apply. Its terms are "until the amount of premium, as (i. e., in the mode) stated therein (i. e., in the policy) shall have been received."

Referring to the policy for the mode in which the premium is to be paid, we find this language only: "By this policy of assurance, in consideration of and of the sum of $254.85, to them in hand paid by Helen A. M. Miller, etc., etc."

Now, this language, as far as it designates the mode of payment at all, provides that the payment shall be in cash for the entire premium. But this was not the mode of payment agreed upon between the parties (as shown by the application and evidence) which was part in cash and part in notes. It therefore follows that, inasmuch as the mode of payment stated in the policy is different from that agreed upon between the parties, the clause under examination, which refers to the policy alone, has nothing upon which to operate. Suppose this premium had been paid in the manner agreed upon, to wit: a part in notes and the balance in cash, might it not still be urged by the company (if this clause is to have the effect contended for) that this policy never went into effect, because the amount of premium as stated therein (i. e., all in cash) has never been paid? And yet the company does not contend for this construction, because to do so would be denying the indisputable agreement of the parties.

Third. While the acknowledgment, in the policy, of the receipt of the consideration money may be contradicted for some purposes, yet it cannot be contradicted for the purpose of annulling the policy, or showing that it never went into effect.

Goit v. Ins. Co. 25 Barb. 189; N. Y. Cent. Ins. Co. v. Nat. Ins. Co. 20 Barb. 475; 1 Phil. Ins. §§ 514, 515; Barnum v. Childs, 1 Sandf. 58; McCrea v. Purmort, 16 Wend. 471; Morse v. Shattuck, 4 N. H. 229; Wilt v. Franklin, 1 Binn. 502; Belden v. Seymour, 8 Conn. 312; 26 N. Y. 260.

Fourth. The finding of the court below being a special finding of all the facts stated in the plaintiff's prayer, this court cannot review the evidence upon which said finding was based, but must treat the facts found as conclusively proved. Their sufficiency to support the judg ment may be inquired into, but of their sufficiency for that purpose no doubt can be entertained. The court, in fact, found that the agents of the company "waived the payment of the cash premium for several months, and treated the policy as an executed contract." If these facts are to be treated by this court as conclusively established by legal evidence, how