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ily and a year later made his appearance at Ro- by them, and that the loss of his friend made chester, New York, where after a short time he, Broome the moody eccentric I have described. as Lemuel Brown, married a Miss Nancy Gray. Last week the case came on for trial here with

This lady, however, did not live long, although "an imposing array of counsel" on both sides, the particulars of her life and death are shrouded Genl. Grosvenor, of Athens, conducting the in the mystery which envelopes so much of the Broome side of the case-the defense. life of this strange guest of the American When the plaintiffs had got their evidence all House; the occupant for forty-one years of the in and rested, the defense allowed a decree to be room in which I am writing. Meantime it was entered for the former, and appealed to the disfound that a Lemuel Bruce was known in Posey trict court

. The defense thus gets the plaintiff's county, Indiana, in 1818; that Lot. Bene was in case and reveals nothing of the line of defense. Butler county, Ohio, in 1822, and that Lemuel Now if this is not a romantic case, you may Brown was known in Columbus, Ohio, in 1829. withhold my salary for two months.

The logic of events; the similarity of the ini- The very peculiar facts and fancies of this tials; the identity of the description of the case makes it one of the most remarkable in the strange biped who thus disappeared and reap- annals of jurisprudence in this country. The peared; the thread of discovery beginning with son of Levi Brewster was here during the trial, the memorandum made by R. L. Broome (or found with thisu meffects, and running back to father when he was about ten years of age

, he 1793, to the birth of Levi Brewster, justified the having returned for a few days before finally disconclusion that Levi Brewster had simply appearing. The old lady presented as the changed his name a few times and died as R. L. daughter of old John Broome, of near seventy, Broome, and that the heirs of Levi Brewster were was also one of the attractions of Court week. entitled to the snug fortune in Col. Robinson's hands.

COMMISSIONERS OF APPEALS OF TEXAS. He accordingly sought and found them. But this pretty and very romantic theory of the rise

THE WESTERN UNION TELEGRAPH Co. and progress of Levi Brewster did not satisfy the Broome claimants, who came forward with

BERTRAM AND MOELLER. as convincing proof that the hero of the wide shirt collar and_forty years endurance of hotel

1. The correct rule for the measure of damages for life, was really Robson Lovett Broome, the son

breach of contract is, that a party is liable for all the of old John Broome, of Marietta, and accordingly direct damages which both parties to the contract would courts and juries were brought in to scttle the have contemplated as following from its breach if, at the

time they entered into it, they had bestowed proper dispute.

attenton upon the subject, and had been fully informed Things began to look dark for the Brewster of the facts, claimants, for there were so many breaks in the

II. In the absence of evidence to sustain the judg.

ment of the court below, sitting as a jury, this court will history of Levi Brewster that much must be left to fancy in the filling of it up; and fancy is not III. A bill of lading occupies the same position as first-class proof as you well know; but at a most other private writing, and its execution must be proven

before it is admitted in evideuce. critical moment, Col. Robinson discovered the long lost daughter of old John Broome; and she Appeal from Travis County. testified that she never had any brother Robson Appellee sued appellant in the County Court Lovett Broome, nor any brother by any name. of Travis County for the recovery of alleged That spiked the Broome claimant's guns most damages occasioned by failure, on part of appeleffectually. But they rallied, and will prove, or lant, to transmit a telegraphic message. Apattempt it-that the old lady-claimed to be pellant demurred to the petition and pleaded a the daughter of old John Broome is an im poster general denial. The demurrer was overruled

-a crank-who has not only deceived herself and the case tried by the court, and judgment but Col. Robinson as well. And they will show rendered for plaintiffs for $271.88. The defendalso that Levi Brewster was married in 1816 to a ant appealed. lady in Berks county, Pennsylvania, and by her The petition alleges that on November 13, had one son who still lives, and who, if the 1879, defendant was and long had been owner Brewster claimants succeed in establishing the and operator of a line of telegraph connecting identity of R. L. Broome with Levi Brewster, the cities of Austin, Texas, and New Orleans, will step forward as the lawful heir which of Louisiana, and offered to the public to transmit course he is, having his mother's marriage lines correctly for hire such messages as might be and the certificate of his own birth, and take presented and given them to be sent from said possession of the estate.

Austin to New Orleans, in each of which it had But the Broome men also will prove that R. offices. L. Broome and Levi Brewster became fast friends That on the 12th day of November, 1879, petibeing fellow soldiers in the army of “Old Tippe- tioners were engaged in business as wholesale canoe," and together during his nemorable cam- grocers in said Austin, and desiring to purchase paign. That they had many adventures and a large quantity of sugar in the New Orleans narrow escapes from_the savages, then and in market, they did, on the morning of the 12th later years, and that Brewster &inally was killed day of November, order from the firm of A.

not let it stand.

Thompson & Co., sugar dealers in New Orleans, graphed to the New York agent of defendant to through their agent in Austin, one Charles destroy said message. Maillott, ninety-five barrels of sugar, to be That defendant never did transmit nor ata shipped' to petitioners as soon as said order tempt to transmit said message to A. Thompson should reach said A. Thompson & Co.. in the & Co., as it had obliged itself to do, and that in course of mail; that at the time said order was consequence of its gross negligence and carelessgiven to said Maillott, as aforesaid, the price to ness, as aforesaid, said message was never delivbe paid for said sugar was agreed upon by and ered to nor received by said A. Thompson & between him and petitioners.

Co.; that had defendant transmitted said messThat said ninety-five barrels of sugar weighed age as it agreed to do, it would have reached said 21,751 pounds; that in the afternoon of said A. Thompson & Co. before they received the 12th day of November, after said order had been order given by petitioners to said Maillott, as given by. petitioners to said Maillott, as afore aforesaid, but as the said A. Thompson & Co. said, petitioners received an offer from other and did not receive said message from petitioners different dealers in sugar to sell them a like cancelling said order, they filled said order for quantity and quality of sugar to that embraced ninety-five barrels of sugar on the fifteenth day in said order given to said Maillott at a price of November, 1879, and shipped same to one and one-fourth cents per pound less than plaintiffs. that agreed upon by them and the said Maillott. That petitioners were compelled, by the negli.

That petitioners desiring to avail themselves gence of defendants, as aforesaid, to receive said of the decline in the market and of said second

sugar upon its arrival, and pay therefor the sum offer, at once ordered from said dealers in sugar a of $2,209, the price agreed upon by petitioners like quality and quantity of sugar to that em- and A. Thompson & Co., whereby petitioners braced in the order given by them to said agent were damaged $271.88, being the difference beof Thompson & Co.

tween the price paid for said sugar and the That after they had ordered said sugar at the price for which petitioners could have bought lower price, desiring to countermand the order the same in the New Orleans market at said given to A. Thompson & Co., petitioners did, on time had the defendant delivered said message the morning of the 13th day of November, 1879, cancelling said order, as it agreed and undertook deliver to defendant, at its office in Austin, the to do. following message, to be transmitted by defend- That petitioners have been further damaged ant without delay to said A. Thompson & Co., $100, being interest from November 15, 1879, to at New Orleans, viz:

date of suit on said $2,209, paid for said sugar, Austin, November 13, 1879.

which amount petitioners were compelled to pay

by reason of the gross negligence of defendant, A. Thompson & Co., New Orleans : Cancel order given Maillott yesterday.

as aforesaid. Prayer for $371.88 and costs.

WATTS, J.
BERTRAM & MOELLER.

In the transmission and delivery of messages, That message was written on one of the mess- telegraph companies must, from the nature of age blanks of defendants, furnished petitioners the business in which they are engaged, and for that purpose; that when petitioners so de- their relations to the general public, be held to livered said message they paid in money the a strict rule of diligence. They accept benefits price ebarged and demanded by defendant for and franchises granted by law, including the the transmission thereof; that defendant, after extraordinary right of eminent domain. receiving said message from petitioners instead The consideration that induces the public to of transmitting the same to their office in the confer these rights and franchises is, that it may city of New Orleans, to be delivered to said thereby be furnished with a safe and speedy Thompson & Co., as they had agreed and bound means for the prompt transmission of informathemselves to do, negligently, willfully and tion between places remote from each other. carelessly transmitted and directed said message And as these corporations are, on the one to the office of defendant in the city of New hand, created for the accommodation and conYork, which was not an office on the line venience of the public, and on the other organ: through which said message should properly ized and put in operation for the mutual profit pass in transit from Austin to New Orleans. of the members, the law assigns them a kind of

That afterwards, to-wit, on the evening of the dual position. In their relations to and with same day the defendants' agent in New York the public, they are deemed a kind of public intelegraphed to the agent of defendant in Austin stitution, and in respect to their internal affairs, that he was unable to find the firm of A. that is among the members, they are deemed Thompson & Co., and requested a more particu- strictly private. The law recognizes this twolar address, which said message (from New fold character of these corporations and reguYork) was duly received by defendant at its lates and determines rights accordingly. Austin office on said day, and thereupon the The alınost instantaneous transmission of agent of defendant at Austin being so apprised ideas to the greatest distance by means of a pethat a mistake had occurred in the transmission culiar application of electricity to a wire whereof said message, and that it had been sent to by certain sounds are made to represent letters New York instead of New Orleans, at once tele- which are to be formed into messageş, expressing with precision the ideas intended to be con- had the message been delivered promptly, as veyed, requires great skill and unceasing care. was contemplated.

Often the most important matters financial In the case of Griffin v. Colver, 16 N. Y. 480, and otherwise are dependent upon the correct Selden, J., treating of the measure of damages, transmission, reading and rendering of these said : The party injured is entitled to recover signals or sounds so that the exact idea intended all his damages, including gains prevented, as shall be communicated to the party to whom the well as losses sustained. message is sent.

Chief Justice Earl, in the case of Leonard v. The duties assumed by these companies in New York Telegraph Co., 41 New York, 544, this respect are truly delicate, difficult and im- considering the same subject, said: It is not portant. As a consideration for assuming these required that the parties must have contemduties, the public grants to them corporate exist- plated the actual damages which are to be ence with its attending rights and benefits. allowed, but the damages must be such as the Besides, as a condition precedent to the as

parties may fairly be supposed to have contemsumption of responsibility, they are authorized plated when they made the contract. Parties to demand and receive full compensation, to be entering into contracts usually contemplate that fixed by themselves, for the service to be ren

they will be performed, and not that they will be dered. Such being the case they should, upon

violated. They very rarely actually contemplate principle, be held to the greatest care in the

any damages which would flow from any breach, selection of the instruments to be used and the

and very frequently have not sufficient informaagents to operate them, and a failure in this re

tion to know what such damages would be, as gard will render the company liable to any per

both parties are usually equally bound to know son injured by reason of such failure. It is a

and be informed of the facts pertaining to the well known fact, however, in the science of

execution or breach of a contract which they telegraphy, that owing to electric currents and

have entered into. the presence of unusual quantities of electricity

I think a more precise statement of this rule occasionally found along the line, that although is, that a party is liable for all the direct dama message may be forwarded or rather started ages which both parties to the contract would with the most exact precision, it may be en

have contemplated as following from its breach tirely interrupted, or the sounds or signals so

if, at the time they entered into it, they had changed that a different message is received

bestowed proper attention upon the subject, and from that which was sent.

had been fully informed of the facts. We are Therefore, it would be upreasonable to require Chief Justice Earl is the law that should be ap

of the opinion that the rule thus stated by these corporations to insure against causes which no amount of foresight or caution, upon

plied in cases where damages are claimed on ac

count of a breach of contract. their part, could overcome.

But as they pos- In this case the breach of the contract is dissess peculiar facilities for establishing the ex

tinctly and clearly stated, and that as a conseistence of these interposing and disturbing

quence of that breach appellees were compelled causes, the burden is upon them to do so when

to pay $271.88 that they would not have paid they seek to excuse upon that account. It is now

had appellant complied with the contract. the general and accepted rule that where it is shown that the message was received by the

And had the parties bestowed proper attention

upon the subject, and had been fully informed company and not delivered, or delivered in a

of the facts as they are alleged in the petition, materially altered or changed condition, that a

it is clear that, as a consequence of a breach of prima facie case of negligence is made against

the contract, that the damages, as alleged, would the company, and the burden is upon it to show that the failure was the result of these unavoid

have been in the contemplation of the parties.

The expenditure of money rendered necessary able causes.

solely by a breach of contract, constitutes subIn the consideration of the case. before us, stantial damages for which an action may be these general principles will be kept in view, as had. the law of the case, so far as applicable to the It is urged that the petition shows that the points made and urged by the parties.

contract with respect to the purchase of the It is claimed that the court erred in overrul- sugar had progressed so far between appellees ing the general demurrer to the petition, and in and A. Thompson & Co., that it could not have support of this objection it is assumed that no been cancelled except upon the consent of the cause of action is stated therein.

latter. The pith or gravamen of the action, as shown Assuming this to be true, still it must be reby the petition, is, that the appellees delivered membered that it is, in effect, alleged that if the to the operator at Austin the message and paid message had been delivered the sugar would not to him the compensation for its transmission have been shipped to them. and delivery to A. Thompson & Co., at New

We conclude that the court correctly overOrleans; that the message was not delivered ac- ruled appellants general demurrer to the peticording to the contract, and by reason thereof tion. the appellees were compelled to pay $271.88 It is claimed that the court erred in admitting more for the sugar than they would have paid as evidence the bill of lading dated November 15, 1879, signed Fred Cook, over the objection of Appellants claim that the judgment of the appellant. On the trial in the court below it court is not sustained by the evidence. was shown that appellees had, on the 12th day The finding of the court upon the evidence is of November, 1879, accepted A. Thompson & entitled to the same consideration as would be Maillott, the agent of A. Thompson & Co., for "This rule has regard in its application to the the sugar, who testified that he immediately sent credibility of witnesses and the weight to be the order by telegraph. Appellants claimed given to their testimony. that the message countermanding the order was But it has no application, however, to the delivered by them to the operator at Austin on question here presented, which is, that there is the day after; that is, on the 13th day of not sufficient evidence in the record giving to it November, 1879; there is no evidence outside full weight to sustain the judgment of the court. the bill of lading found in the record that tends It is not a question of preponderance, but an to show that the sugar was not shipped on the absence of evidence. day before appellants delivered the message to The record indisputably establish.es the first of the Austin operator. This was a material fact, the three propositions stated above. and the burden was upon appellees to show that Appellant insists that the evidence fails to if the message had been promptly delivered to establish the second proposition, that is, it fails A. Thompson & Co., that it would have reached to show that the message was not delivered. them before the sugar was shipped.

To establish the default, appellees proved that Stating the proposition in a different form, on the morning of the 13th day of November, the burden was upon appellees to show an in 1879, they delivered to the operator at Austin jury resulting from the non-delivery of the the message in question and paid the charges meşsage to entitle them to

recover in this for its transmission and delivery; that the same action.

was immediately sent, properly addressed to A. And it is certainly true that if the sugar was

Thompson & Co., New Orleans; that the messin transit before the message countermanding

age was sent to Galveston and repeated from the order was delivered to the Austin operator,

that place; that soon afterwards, the same day, that no injury could have resulted in the par

an office dispatch was received at Austin by the ticular matter asserted in the petition to appel- operator from the Galveston repeating office lants. Evidence to establish the fact was neces

purporting to be from New York, to the effect essary, and while the bill of lading might not Thompson & Co. The operator replied through

that New York could not find Austin's A. furnish very conclusive evidence that the sugar was shipped after the time the message should

the Galveston repeating office that it was a mistake and to destroy the message.

The have been delivered, it does tend to show that fact, and constitutes the only evidence in the

Austin operator made no further effort to send record with respect to that matter. Therefore,

the message, and did not notify appellees, alif the same was improperly admitted, it would though well acquainted with them, of the rebe a material error and such as would likely ceipt of the office message from New York. work an injury to the appellant.

This is all the evidence in the record tending

to show that the message was not, in fact, delivThe bill of lading and accompanying letter did

ered to A. Thompson & Co. The evidence of not, in whole or in part, form the basis of any neither of the members of that firm is found in pleadings in the case. They were private writ- the record. ings to which appellant was an entire stranger. The operator testifies that when he received And it is elementary law that private writings the New York message, that he replied that it which do not constitute, in whole or in part, the was a mistake, that the message was intended basis of the pleading, is not admissible in evi. for New Orleans, and to destroy the same. dence without first proving their execution. A The reasonable conclusion to be drawn from bill of lading occupies, in this respect, the same the evidence is, that all of the messages passed position as any other private instrument, and if through the repeating office at Galveston, and the same purports to be signed by a clerk or that the mistake in sending that in question to servant, the agency of such clerk or servant New York instead of New Orleans, most probamust also be proven. Abbotts' Trial Evidence, bly occurred in the Galveston repeating office, 564; Rena v. Sumers, 33 Tex. 760.

and as the attention of that office must have It is our conclusion that the admission of this been called to the mistake by the New York evidence constitutes such error as ought to re- enquiry, it is most reasonable to suppose that verse the judgment. To entitle appellees to the same would there be corrected. recover in this case, the burden is upon them to We are not prepared to say but that, in the establish the three following propositions : absence of proof, the presumption ought to be

1. That the appellants undertook to transmit indulged that the repeating office corrected the and deliver the message.

mistake rather than presume negligence. 2. That it failed to transmit and deliver the

Appellant also claims that the evidence fails same as agreed.

to show an injury by reason of the supposed de3. That appellees were damaged by reason of fault in delivering the message. In this, the evithe failure.Abbott's Trial Evidence, 604. dence shows sucha contract between appellees and A. Thompson & Co., that it would not be of Second Marriage. Case stated in which the testimony

failed to show that the first wife was living at date of subject to cancellation without the concurrence

second marriage. and consent of A. Thompson & Co. As to this question the record shows that ap

Appeal from Superior Court, Santa Clara pellees had made a proposition to A. Thompson

County. & Co. to purchase the sugar. This was made THORNTON, J. through Maillott, the agent of A. Thompson &

The defendant was convicted of bigamy, moved Co. The proposition as made was declined and a for a new trial which was denied, and judgment different proposition, with respect to the pur

was rendered and entered upon the conviction. chase of the sugar, was submitted to appellees, This appeal is prosecuted from the order denying which they accepted and the sugar was ordered a new trial, and from the judgment. accordingly by Maillott.

On the trial, testimony of a witness was offered The evidence is conflicting as to the under- and admitted that defendant had stated to him standing between Maillott and appellees with in 1875 or in 1876 that he had left a wife with reference to the latter's right to countermand four or five children in Chicago; that she was any orders given for goods before the same were sick and couldn't stand a voyage to California. filled or the goods shipped.

Another witness testified that a person stated to And while the evidence shows a contract of him in 1875, in a conversation had in the prespurchase binding in law, we would not be au- ence of defendant, that he (defendant) had a wife thorized in holding that the court found with and five children in Chicago, and that his wife out evidence upon this point. Moeller testifies was sick; that the defendant said nothing in rethat his firm had an understanding with Mail- lation to this statement made in his presence. lott that any order taken by the latter was sub- that defendant told him several times that he ject to countermand by either party before filling had a family in Chicago; that "the last time deor before the goods were shipped.

fendant referred to his family in Chicago was We award that the judgment be reversed and can't say exactly-about two or three years ago. the cause remanded.

Said his wife was sickly." A third witness tes Award of Commissioners examined, opinion ; tified that he saw defendant in his office in 1875. adopted, and the judgment reversed and cause This witness proceeded to state : "He (referremanded.

ring to defendant's statements) said times

were poor in Chicago; he had a wife and four or SUPREME COURT OF CALIFORNIA.

five children. He spoke of his family after that -showed

me likenesses of children. He PEOPLE, RESPONDENT,

spoke of his family the last time about

1878. I couldn't place the date very well." J. R. FEILEN, APPELLANT.

This witness also stated that he intro

duced defendant to one Habisch ; that August 22, 1881.

“defendant explained to Habisch that he

had a wife and family in Chicago, and wanted Bigamy-Proof of Former Marriage and Life of First Wife Necessary. In a trial on an indictment or informa

to raise money and bring them to California. tion for bigamy, to make out a case on the part of the

This was in 1875." The officer who arrested the prosecution, the first and second marriage must be proved, defendant was called and testified that defendant and it must also be proved that the former husband or wife was alive when the second marriage was entered

told him after the arrest that he had a wife and into.

four children, but had not heard of them for four Instruction as to Presumption of Continuance of Life or five years, that he was not certain, but think from Proof of Prior Existence. It is error to instruct

he said in Chicago. Of this last statement as to the jury upon the trial of a charge of bigamy that in determining whether the wife of the former marriage

the place he was not positive; that there was living when the second marriage took place, they was no threat or inducement offered him to make may act upon the rule of law that when a fact is once shown to have existed, the law presumes its continnance ;

this statement. The above is all the testimony and since it had been shown that the former wife was

bearing on the issue as to the wife of the alleged alive two or three or four years prior to the second mar- first marriage being alive when the second marriage, the law presumes that she continues to live, upon riage occurred. which presumption of law they are authorized to act in determining whether the former wife was living at the As to the second marriage it was admitted at date of the second marriage.

the trial that it took place in San Jose in this state, Presumption of Life of First Wife. In a bigamy case in the month of July, 1880, with Dora Max, the there is no presumption against á defendant, from the fact of proof of existence of former wife that such exist

person named in the information, and that deence continued at the date of second marriage. The is- fendant and Dora Max had lived together as hussue on such point must be left to the jury to be deter- band and wife since the date just above given, mined as a matter of fact, upon such reasonable inferences as the evidence supplies, free from any presunip

in San Jose. tion of law.

In a trial on an indictment or information for Family. The word "family” does not necessarily include wife. Such word is frequently applied to children

bigamy, to make out a case on the part of the alone.

prosecution, the first and second marriages must Arrest of Judgment-Demurrer. By failing to demur be proved; and it must also be proved that the specially, a defendant is precluded from moving in ar. former husband or wife was alive when the secrest of judgment on grounds which are the subject of ond marriage was entered into. In this case it special demurrer. Evidence of Existence of Life of Former Wife at Date was necessary to prove that the former wife was

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