44
FEDERAL REPORTER,
vol. 45.
I have been asked to charge the jury" that the contract read in evidence between the Historical Publishing Company and the defendant, Finney, is a contract of sale, made, from every legal stand-point, on the basis of mouey paid by the company to the defendant." I have no objection, to stating to you that such is the case. There is no doubt that the contract in question was made upon a perfectly valid consideration. The substance of what I have said I have reduced to writing, and you may take it to the jury-room, also the indictment.
UNITED STATES tI. EDGAR.
(otrcuU Court. E. D. Missouri, E. D. January 29, 1S91."
L .
The01feusedescribed in sections 1 and 3 of the act of February 26,1885, (23 U. S. St. m,)'consists in prepaying, or otherwise assisting or encouraging the importation or IQ.igration of an alien, knowing such alien to be at the time under contract to perform labOr or service in the United States. Following U. S. v. CraiCl, 28 Fed. Rep. 799. . . SA.ME-M».4'NING OF WORDS "CONTRACT" OR "AGREEMENT. "
FOR ALIEN L A B O R . .
.
I. S.
The words "contract" or "agreement," used in the statute, mean an enforceable contract, express or implied. A letter was written by an alien in England to a person in the United States, saying that the writer had heard that the party addressed was in want of men to do a certain kind of wbrk, and, if convenient to send passes, himself and another alien would "oorne (lut," but contained no eX\lreas promise to do work in consideration of receivin'f passes. To. this letter a thlrd party, to whom the same was handed, replied: " have this day bought two tiokets for you; * * * take this letter to R. S. & Co., " * * and get tickets. * * * We can give you steady work. * * * Tickets wlU not be good after July 18th." The letters being the onlyevidence of a contract to perform labor or service in the United States, existing when the transportation was prepaid, heUi, that they were insufficient to establish a contract existing that date.
SA.ME-CONTRACT-EvIDENCB OF.
to recover a penalty for prepaying the transportation of two aliens from
This is a s.uit
section 8, Act Feb. 26,1885, (28 U. S. St. 883,)
Bristol, England,to the United States, such aliens being at the time, as i.t is claimed, under a contract to perform labor for the defendant in the United .f3tates.The petition, after alleging the prepayment of the trans" portation, w4He the aliens were under a contract to perform labor in the .tfurther avers that "said contract and agreement between United entered into between them· by letters fordefendant and said aliens warded delivered by mail, which letters are as follows: "No. '16 AIKEN ST., BARTON HILL, BRISTOL, April 11,1890· . From Mr. I. Bovee to M1'. ·f11'all, the manager-:-DEAR SIR: I have heard that you are in want of men to work on the spilter furnaces l: and one of my fellow workmen would like to come out hear as the workshear is very slack if it would be convenient for you to send us a pass each we would
UNITED STATES V. EDGAR.
45
come out as soon as poseble we have both worked in the spelter works for many years would you oblige us by writing back to let us now and oblige "I. BOYCE, "No 16 Aiken Street, Barton Hill, Bristol, England. "The name of my fellow workman Fred. Dorosalski." "8. C. EDGAR, "Lessee fllendale Zinc Works, Manufactu1'ers and Refiners of Spelter,
"SOUTH ST. LOUIS, 1st July, 1890,
SIR: Your letter of Aprillltb has just been handed me, and I have this day bought two tickets for you and Fred Dorosalski from St. Louis agent of American line, and all you have to do is to take this letter to' Hichardson, Spence & Co., No. 17 Water street, Liverpool, and get tickets through to St. Louis. We can give you steady work, and have places for about 6 or 8 more smelters· .if they want to come. I run 14 Belgium furnaces. Tickets will not be good after July 18th. Yours, truly, S. C. EDGAR." It is conceded by the government that the letters constitute the only evidence of a contract that it can ptodulJe. It is further averred, in substance, that on receipt of the last of'the above letters, Boyce and Dorosalski presented the same to Richardson, Spence & Co., at Liverpool, England, and received from that firm tickets for their passage thence to St. Louis, Mo" which had been theretofore paid for by the defendant, and that the aliens thereupon took passage on a vessel from England to Philadelphia, intending to come to St. Louis and perform labor for the defendant,but that, on the arrival of the vessel at Philadelphia, the irn:migrant inspector at said port, on an examination of the circumstances underwhiob they had come to the United States, refused to permit to land, and ordered them to be sent back to England. To the petition alleging the above facts the defendant demurs. Goo. D; Reynolds, U. S. Atty. F. N. JudBon, for defendant.
.. I. B01Jse, No. 16 Aiken St1'eet, Barton Hill, Bristol, England-DEAR
THAYER, J., (after stating thefacts as above.) Two questions have been argued at the bar: Jilirst, whether' Boyce or Dorosalski. as shown by the correspondence, were under any sU'ch "contract or agreement, parol 'or' special, express or implied, to perform labor or service in the United States," as renders the defendant liable to a penalty for prepaying their tr.msportation; and, 8econd,whether the fact that Boyce and Dorosalski did not actually land, but were sent back to England, absolves the dafendant from liability. ' I find it unnecessary to decide the last -question. It has· been held, according to the plain import of the language employed, that the wrongful act described in the first section of the statute under consideration consists in prepaying the transportation, or otherwise assisting or encouraging the importation, or migration, of an alien, when such alien is known to be under a contract or agreement to perform labor or service in the United States, U. S. v. Oraig, 28 Fed. Rep. 795; U. S. v. Borneman, 41 Fed. Rep. 751. It follows that it is not unlawful "to prepay the transportation" of an alien, unless at the time of such prepayment the
REPORTER,
alien is then" under contractor. agreement to perform labor or service in the United States." Whether· Boyce and Dorosalski were under contract or agreement to perform labor in the United States when their transportatiollwas prepaid, must be determined with reference to what had been done towards entering·iiitoa contract up to that time, and at the time their passage was prepaid there had simply been an interchange of letters of the tenor above stated. A contract that is not enforceable for the reason that it lacks some of the elementsof a valid agreement, suchas "mutual assent," or a consideration, is not a contract. Hence the words "contract or agreement," as used in the statute, must be held to mean a complete contract; that is to say, an agreement entered into for a sufficient consideration to perfprm some kind .of labor or service, to the terms of which the parties have mutually assented. If an "implied contract" is counted upon, a 'state of facts must be alleged from which a court or jury might lawfully draw the inference, as a matter of fact, that the alien had agreed to perform labor or service of some kind. and that some other person had agreed to accept such services· .In my judgment the letters do 'Dot constitute an "express contract," and, taken in connectiop with. what bad been done up to the time the transportation was paid, are insufficient to establish an "implied contrl!-ct." The distinct proposition convey:ed by the first IEjtter is merely a proposition to "come out," which may be interpreted "come to the United ,States, if the party addressed [Mr. Gray] would send passes." No promise made, however, to do work of any kind, or for any person, in consideration of receiving such passes. If the aliens had in fact landed in the United States, and had declined to work for the defendant, the latter CQuld. not, in my judgment, have maintained an action against them as for breach of a to perform labor or service for him. The second 10tter is subject to the same criticism. The defendant did not say: "If you will come to the United States, we willgive yO\1stoody work." The language is: "We can give you steady work," etc. It is .reasonable to infer, hath from the language employed and from the situ.stion ,of the parties, fha t the. defendant was un willing, and did not in. tend', to into a positive engagement to employ Boyce or Dorosalski :until they had arrived in this country, and found to be suitable ·persons toeDJploy. .. . I conclude, therefore, that the does not show such contract to performlallpr or service existing when the aliens' transportation wa:; prepaid as brings the case within thestat\1te. I am led to the more J"eadily as the la.w is highly penal, and must construed.
·r,
i
'UNITED STA.TES fl. HUGHlTT.
47
UNITED Sl'ATES (District
HUGHIi'T.
C01.t:rl, N. D. New
February S.1891.)
BANxs-:M:AXmG FALSE REPORTS-INDIOTMENT,
An indictment under Rev.St. U. S. § 5209, which provides tbat every president of any association who .makes any false entries in any book, report" or statement oftha with iIitentto injure or defraud, shall be deemed guilty of a misthat defendant, as president of a certain hank, "did knowingly, wrongfully,' and unlawfully make, and cause to ,be made, false entries in B report or iltatement" of such bank,ibeing a report of its condition at'a designated time, "made to the comptroller of the currency, as required by lalY'to be Thereport wa,s set, out in full, and the particulars in which the entr\es were alleged to be false were 6tate,d tn, detail.E, that the indictment was, sum, 'llient,tbQughlt'did Dot tbB,t the re,port was made pursuant to a request of ,the ,CQmptrolIer, 0,l"al> ,0r ata time Pl'tlscribed by him under § 5211, pro-
:"" In 1887 the defendant >waS president of the First National Bank of 'Auburn, At the September termoC this court he was indicted 'for 'entries in. a report purporting to give:a stateIllent oPtlie condition of said bank, at the close of business on the 7th day of ber, 1887.' The indictineht is framed under seetion5209 of the Revised 'StatuteB;whichprovides that-', ' "Every'president ",,,,: ... , bhnyassociation wbo! false ,entry in' any book, report, or statement of the a:il/Joexation. Wltb, 'Intenl1, eitberca$6, to injure or,defraud the association or any other company. body , pQlitiQC)X.corporate,or individual or todecei ve. tbtl to examine the any such RMpej,,at'ioo; a'f)4 wiio wltb like intent aids or agent inaqy violation' of tbiS section, shall be dee,med' gUilty of a misde:meanor,'" etd. " i ' , · , -' ",
,.,* ··
or
, as president of said"bal\'lt7 '''Did ktl0W:inglv. wrongfulli'lI.Dd unlawfully make anll ,calise to faI,se entries in 'a re1-'0rt' or statement of the said First National Bank of Auburn, being a report of the condition of the First National Ba.bkof AUbuJ.;tliitthe close of business on the 7th day of December, 18t:l7, made- to the cOIIlptroller of the currency as required by law to be made to the comptroller of the currency." , ", The report is then set out in extenso, and the indictment:proceeds"---" 'K And whichsail:lreport or statement so made as aforesaid, then ana·thete purported to$how as required by law then and there, and did, in substance an!! f'fIect, purport to indicate and declare the true and wrrect cOndl,tiQnaR,4 standing of, tbesald the Fi!-'st at the, close of business on the.!lald seventh,day ofDecember, l;t.:, D,1887,N1Q. Which in which saId false entries were then and there made l1aaforeaaid,'wasa'cettai-n repoit or the said the First National Bank of' Auburn; in that behalf, 're{jUlred by law to be made to the comptroller of the currency, and whieh report or statement made asafol'esaid was .false 'and: untrue 'In the following respects and contained false entt'ies as follows, to-wit:" '" " , The, indicttnentthen'setacoutth,eitems ';;h1uec tlerba; ahd,states'itUle_ tail thepartiDulars,in whrohthey areeaid'tt> befw8'e"the coantlh-'qfies: