MARKS V. FOX.
'1'18
controversy have been occupied by them, and by {hose whom they claim, for more than 40 years, and have been greatly improved in value. The difficulty in the way of the complainants is that their occupancy, not being under law, has conferred upon them no legal or equitable estate, and they cannot be heard to question the title of one VI' ho claims under a patent from the United States. While the complainants cannot be heard to question the Valentine title, it would seem that the government might well inquire, by direct proceedings, how one with authority to locate on unoccupied lands should be permitted, at the price of $1.25 per acre, to locate on lands in the heart or the suburbs of a city. The demurrer must be sustained and the bill dismissed.
"MARKS
v. Fox. October Term, 1883.)
(Circuit Court, 8. D. New York. 1. ExCEPTIONS TO EvIDENCE.
Exceptions to the admission or exclusion of evidence taken before a master need not be restated when the exceptions to his report are filed. They can be considered upon the record on the argument of the motion to confirm his report.
2.
REB GEST&.
Declarations made byan employer to a workman at the time work is given to the latter, as to the person for whom the work is to be dOll.e, are part of the res gestl13, and admissible in evidence. The marks or tags upon the parcels of work so given are also part of the res gestlB. Parol evidence is admis:;il>le as to these marks, for the purpose of identification.
3.
CONTRADICTORY STATEMENTS.
Contradictory statements alleged to have been made by a witness are not admissible, unless his attention has been previously called to them.
4. IMPEACHMENT OF WITNESS.
Evidence that a witness is acquainted with the character of another is not sufficient to authorize him to state that he would not believe such a witness under oath. It is necessary that he should say that he knew the character of the witness for truth and veracity.
Exceptions to Master's Report. This cause came before the court on exceptions filed by the defendants to the master's report. The action was brought to restrain the defendants from the alleged infringement of the plaintiff's patent. An interlocutory decree was rendered in favor of the plaintiff, and it was referred to the master to ascertain and take an account of the profits which the defendants had II\sde and of the damages which the plaintiff had sustained by reason of theinfringement. During the hearing before the master, it becamo material to show how many caps had been made for the defendants by one Isaac Pachner, and by the firm of Pachner & Adams. The defendants called several witnesses, who had been in the employ of Pachner & Adams, whb testified that, in the ordinary course of business, the material of caps which that fin"-
714
FEDERAL REPORTER.
made' was brought to them by the several houses with whom they dealt, ready to be made up j and that thereupon it was given out by Pachner to his workman to be bound, stitched, trimmed, and made into completed eaps. These were then put into pasteboard boxes and returned to the houses furnishing the material. Each witness further tel;!tifiell that the material furnished by each house was kept separate ,during the process of manUfacture, and that when the rna· terials for a particular lot of caps were given out to each workman, Pachner stated to him for whom that particular lot was to be made j and some of the witnesses further testified that the different lots of material had marks upon them indicating for whom such lots were to be made, respectively. The witnesses' names were Henry King and Aaron Grant. The master's rulings upon the questions put to them will sufficiently appear from the following specimens: (47) Qu.eYtion. What were the names of the firms stated to you by your boss in the directions which you have testified were given you in respect to the firms for whom the different lots of caps were bAing made? (Objected to as immaterial and incompetent; objection sustained; exception.) (48) Q. In the course of the directions thus given you, as you have etated, did your boss point out to you any of the caps as' being made fo,: Charles Fox's Son & Co. ? Answer. Oh, yes; he used to point out a lot as belonging to Fox and say, "Take these and work them." (49) Q, How many slide-band caps did Pach. ner & Adams make for Charles Fox's Son & Co. during 1879? (Objected to, as no competency has been shown, and as hearsay; objection sustljoined; exception.) (50) Q. How many of the slide-band caps on which you worked in 18'19 was for Charles Fox's Son & Co. jI (Objected to as hearsay; objection sustained; exception.)
, Certain affidavits that had been read on a motion to punish for contempt, were, by consent, received in evidence as depositions. These affidavits stated the number of caps that were made by Pachner for the defendants, and showed that the means of knowledge on this subject of the affiants was the statement so made to them respectively by Pachner, at the time the work was given to them, and the marks upon the different lots. The plaintiff's counsAI objected to this evidence, on the ground that it was hearsay and incompetent. It was excluded by the master and defendants excepted. In reply to other portions of the defendants' testimony, the plaintiff put in evidence. an affidavit of Samuel Adams, which,by consent, was received as a deposition, which containoo a statement as to what Alice Wronke,the wifeof\V. Wronke, and Wronke himself, had said to the affiant as to the circumstances under which Wronke's affidavit was ob· tained, and the same affidavit contained the following statement: "1 know Alice Wronke ana Theresa Gumbert; they worked for us, and their character is bad j 1 wOl,lld not believe either of them under oath." These portions oOhe affidavit of Adams were objectad to by the defendants, but were received.by the master nncler the defendants' exceptions. When the testimony wail a,ll in, and the case argued before the master, he made /11 draught report, of which he served a copy on the solicit-
ors, who filed objections to the same. He then filed his report after receiving such objections, and the'defendants filed exceptions to the report, but did not in the exceptions so filed restate the exceptions taken before the master, relying upon such exceptions as theyappeared on the record. On the argument before the court, the plaintiff claimed that these exceptionB could not be considered by the court because they were not restated in the formal exceptions as filed. Everett P. Wheeler, for defendants. 1. The exceptions are regularly takeu and are before the court. Troy Fact. v. Corning, 6' Blatchf. 328; Tyler v. Simmons, 6 Paige, 127; Livermore v. Bainbridge, 14: Abb. Pro (N. S.) 227, affirming S. U. 44 How. Pro 357; Equity Rule, 90;' -Fischer V. Hayes, 16 FED. REP. 469. 2. The declarations made by "the boss" at the time he distributed the work and supplied the material were part of the res gesta3. The thing done was material to be shown. The declarations were contemporaneous with the main fact under consideration, and "were so connected with it as to illustrate its character." 1 Greenl. Ev. § 108; Beaver v. Taylor, 1 Wall. 637; Ins. Co. v. Mosley, 8 Wall. 397. 3. The material fact to be proved being the number of slidingband caps made by Pachner & Adams for the defendants, the circumstances and declarations offered in evidence were contemporaneous with the manufacture and with the separation, and are so connected with it as to illustrate its eharacter, to-wit, separation for the defendants instead of for Solne one else. 1 Gl·eenl. Ev. § 108. In Pool V. Bridges, 4 Pick. 378, the court say: "If he'was then employed in any act respecting the goods, such as separating different parcels for the purpose of distinguishing what belonged to one person and what to another, what he said while he was doing it would be considered as a part of the transaction and admissible in evidence. It would be like his labeling the goods with the name of the owner, which though in one sense a declarntion, yet would be construed an act indicative of proprietorship in the gOOds." . I
4. So far as relates to statements byWronke. tending to impair his his attention should have been called to them, otherwise they are inadmissible. 1 Green!. Ev. § 462. 5. The witness does not say that he knew the character of Mrs. Wronke and Mrs. Gumbert for truth and veracity. This is essential to sustain a general impeachment. Id. § 461. C. Wyllis Betts, for plaintiffs. Exceptions to a master's report upon rulings accepting or rejecting evidence, can be taken, if at all, only when objections of the same kind have heen made to the draft report. No such exceptions were' taken in this case. Troy Fact. V. Corning, 6 BIatchf. 328; Schwarz v. Sears, Walk. Ch. 19; Tyler v. Simmons, 6 Paige, 127; Ward v. Jewett, Walk. Cb. 45. Errors or irregularities in excluding evidence
716
REPORTER.
can only be reviewed by motion to refer back before filing exceptions. The filing of exceptions waives them. Tyler v. Simmon8, 8upra. WALLACE, J. The master erroneously excluded the declarations of Pachner to his workmen, made while distributing materials to them to be worked into caps, tending to indicate to whom the materials belonged, and for whom the caps were to be made. They were competent as part of the res gestce, and, like the marks upon the different lots, indicating to whom the lots belonged, fall within the category of verbal faets. The witnesses should have been permitted to give their estimate of the number of caps made for the defendants, so far as such an estimate could be founded on the personal observation of the witnesses, and upon the knowledge acquired by them from directions and instructions given to them while making the caps for the various customers of their employer. The master erroneously sustained the objections to interrogatories 20, 28, 34, 38, 47, 41J,50, 51, and 52, propounded to the witness Henry King, and to interrogatories 17, 21, 44,46, 65,68, 72, 75, 76, and 81, propounded to Aaron Grant. While some of these inbeen of much importance, others terrogatories do not seem to were, and the general result of the master's rulings has been to deprive defendants of testimony which was clearly oompetent and material. It is for the master to determine what weight should be given ,to this testimony when it is in the case. It may be that his conclusions will not be affected by it, but upon this review of his findings it cannot be determined that they were not influenced by the absence of the evidence which the defendants sought to introduce. The portions of the affidavit of William Wronke, Alice Wronke, and Saill :Wolff excluded, should also have been received. and the objections on the part of the defendants to portions of the affidavit of Samuel Adams relating to the statements of Alice Wronke, and as to the reputation of Wronke and his wife for veracity, should have 1?een sustained. The case is referred back to the master, with directions to permit the defendants' to re-examine the witnesses Ring and Grant de novo, and to receive the portions of the affidavits of Wronke and his wife, and Saill Wolff, which were excluded, and to exclude the portion of the affidavit of Samuel Adams which was admitted, and thereupon to reconsider the proofs and report his conclusions.
10NES
v.
WESTERN O. TEL. CO.
717
V. WESTERN
U.
TEL.
CO.
(Oircuit Oourt, E. D. A1'kansa8.
October Term, 18B3.) MEs-
LIABILITY OF TELEGRAPH COMPANIES FOR ERRORS IN TRAN8MJSSIOW OF SAGES-PRINTED CONDITIONS ON BJ,ANKS.
'fhe printed conditions on the half-rate message blanks of the Western Union Telegraph Company are reasonable and valid, to the extent of protecting the company from damages for any error or mistake occurring in the transmission of a half-rate message, unless it is shown affirmatively that such error or mistake was the resul t of gross negligence or fraud; and mere proof of the fact that there is a mistake of a word or a figure in the message as delivered, is not in itself sufficient evidence of negligence or fraud to render the company liable beyond the amount stipulated for in the contract of the parties.
At Law. M. W. Benjamin, for plaintiff. U. M. &; G. B. Rose, for defendant. CALDWELL, J. The plaintiff delivered to the defendant at Little Rock, for transmission to St. Louis. a message written on one of the half-rate night message blanks containing the usual printed tions. The following is a copy of the printed conditions and the m(;lssage written thereunder: "THE WESTERN UNION TELEGRAPH COMPANY.
"Half-Rate Message· .. The business of telegraphing is liable to errors and delays, arising from causes which cannot at all times be guarded against, including sometimes negligence of servants and agents whom it is necessary to employ.. Most errors and delays may be prevented by repetition, for which, dUrinS the day, half price extra is charged in addition to the full tariff rates. "The Western "Gnion Telegraph Company willl'eceive messages, to be sent without repetition during the night, for delivery not earlier than the of the next ensuing business day, at one half the usual day rates, but in no case for less than twenty-five cents tolls for a single message, and upon the express condition that the sender will agree that he will not claim damages for errors or delays. or for non-delivery of such messages, happening from any cause, beyond a sum equal to ten times the amount paid for transmission; and that no claim for damages shall be valid unless presented in writing within thirty days after sending the message. . . . . "Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a great.er distance a special charge will be made to cover the cost of such delivery, the sender hereby guarantying payment thereof. . . . ., "The Company will be responsible .to the limitq! its lines only, for messages destined beyond, but will. act as the sender's agent to dl'Iiver the message to connecting companies or calTiers; if desired,' without charge and Without liability. . "A. R. BREWER, Secretary NORVIN GREEN, President. "Feb. 24, "Send the following half-rate message, subject to the abOve terInS, Which are agreed to: