116 US 548 Otis v. Oregon Co

6 S.Ct. 523

116 U.S. 548

29 L.Ed. 719


Filed February 1, 1886.

Geo. H. Adams, for the motion.

John Sessions and John R. Abney, against the motion.


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This is a suit brought December 12, 1878, by the Oregon Steam-ship Company, the defendant in error, against George K. Otis, the plaintiff in error. The complaint alleges that on the second of March, 1874, Otis, as agent of the steam-ship company, entered into 'a certain steam-boat contract' with the United States for carying the mails between San Francisco, California, and Portland, Oregon, from June 1, 1874, to June 30, 1878, at the rate of twenty-five thousand dollars per annum; that the steam-ship company performed the contract, and that Otis received $97,131.38 on account of the service, which was the full amount due after certain deductions provided for in the contract were made; that of this amount he paid the company $83,675.24, and is entitled to retain $2,500 as his agreed compensation, but that he neglects and refuses to pay over the balance, being $13,456.25, and for this judgment is asked. Otis in his answer admits the making of the contract as set forth in the complaint, but denies that he made it as agent for the steam-ship company. He also admits that he has received the amount of money which is stated, and that he has not paid over the balance claimed to be due. The case was tried by a referee, who found that the contract was made by Otis as agent for the company; that the company had performed the service; that Otis had received the money as charged; and that there was due from him the amount claimed. Upon the filing of the report Otis excepted to the findings in these words: 'The defendant excepts generally to the findings of the referee of fact and law, and to each and every such finding, save only such as were requested by the defendant. The defendant further specially excepts severally to each and every finding, and to each and every part of each and every such finding, designated in his report by the following numbers, namely, 2d, 3d, 4th, 5th, 6th, 7th.'


Neither in the pleadings, nor in the evidence, nor in the findings, nor in the exceptions as shown by the record, was there any title, right, privilege, or immunity specially set up or claimed under the constitution or a law or authority of the United States. The sole issue in the case was as to the agency of Otis. The steam-ship company alleged that he made the contract as its agent, and this he denied. There was no suggestion of the illegality of such an agency. The only dispute was as to the fact of its existence. In Moore v. Mississippi, 21 Wall. 639, it was held that 'if the record shows on its face that a federal question was not necessarily involved, and does not show that one was raised, we will not go out of it, to the opinion or elsewhere, to ascertain whether one was in fact decided.' That rule governs this case. There is not in the record the least suggestion of a federal question. We will not look into the opinion, therefore, which has been annexed to the record below, in obedience to our rule No. 8, § 2, to ascertain whether such a question was in fact decided. The only issue in the case was as to the agency, and that did not depend on the constitution or any law of the United States. The contract was entered into by Otis, and it was performed by the company. Otis collected the money, and his liability depends, not on the effect of his contract, but on the fact of his having received the money for the steam-ship company.


The motion to dismiss is granted.