Baltimore & Ohio Railroad v. Brydon ex rel. Davis

Motion for Rehearing. Judge Bryan filed the following opinion: In looking over the advance sheets of this volume a few days ago, I saw the opinion of the Chief Justice on this motion, (ante p. 223.) I had no knowledge of its existence before this time. Immediately after this motion was overruled, the Court took a recess of some weeks. It is unusual to file opinions when such motions are disposed of, and none was filed at the time.

This one embodying the individual views of the Chief Justice was filed sometime afterwards; it was never read to the Court, and iny attention was not called to it. The occasion requires that I should state my reasons for adhering in all respects to the opinion of the Court originally delivered; and the circumstances which I have mentioned will account for my delay in doing so. In this case there are thirty bills of exception, and the record comprises three hundred and ninety-seven large folio pages of printed matter. I made a careful, minute and laborious investigation of every question, and of every phase of every q uestion presented in the case.

The amount involved was very large, and the responsibility of the decision was felt to be very great. The labor of considering the immense mass of matter contained in the record was cheer ⁶¹² fully performed with an earnest and anxious desire to do equal and exact justice between the parties according to law. And when the learned counsel filed their able argument-for a rehearing, it received from me the careful and respectful consideration which it merited. If there be errors in my opinion they are not the result of carelessness, or inadvertence or design; but are .due to infirmity of judgment. ■ The great question in the case was whether the rejection of the coal by the master of transportation and master of machinery was made in good faith, or in fraud.

The object of the opinion which I delivered was to group-together the facts and circumstances in evidence, which it was competent for the jury to consider in the determination of this question. It was not my purpose (neither was it my duty) to give a detail of the proceedings in the Court below, and to show what portions of the testimony were offered in chief, and what other portions in rebuttal. I have always supposed that the jury were obliged to-consider all competent testimony, whensoever and howsor ever it might be offered. The experience of many practitioners will recall instances where the plaintiff’s case has been established by testimony offered by the defendant.

It is the function of the Court to instruct the jury as to the questions in the cause to which the evidence is to be applied. And this duty extends to all the evidence;, as much to that offered in rebuttal as to any other, but no more. The testimony of the plaintiff mentioned in my opinion as to the alleged • conversations with Sharp and Davis, was offered to contradict their testimony, wherein they denied that such conversations had taken place. It is difficult to see how it could contradict them, except by proving that such conversations actually occurred.

And if the jury believed that these men really made the statements attributed to them, confessing such unworthy motives in rejecting the coal, they were ⁶¹³ 'bound to give some effect to these facts. What inferences did they authorize the jury to draw? For what purposes was it competent to consider them ? To give a satisfactory answer to these inquiries, we must turn our •attention to the incidents of the trial.

According to the contract, Brydon was bound to furnish coal of quality •satisfactory to the masters of machinery and transportation every day for three years after the fifteenth day of •July eighteen hundred and seventy-five. In deciding upon the merits of the coal, they were bound to exercise •an honest judgment. There is no obscurity about the terms of the contract. It was Brydon’s right during the whole term of three years to furnish coal of the prescribed quality, and he could not be deprived of this right, except by his own default.

During all this time (if not in default himself,) he had a right to demand the judgment of these arbiters on the quality of his coal. . If their judgment was fairly and honestly rendered, it was ■conclusive upon him; but if fraudulent, it was of no ■effect. Now let us observe that it was alleged that these •conversations occurred in August and September eighteen hundred and seventy-five, within the period embraced by the contract, and of .course, during the time when the arbiters were bound to exercise their functions as judges of the coal. Now it cannot be denied that these statements, if really made by Sharp and Davis, were the most •overwhelming impeachment of their integrity in making the decision, which rejected the coal.

It is, of course, well settled that when a witness on cross-examination •denies having made a statement, proof from the adverse party that he did make it, is not to be taken as evidence of the truth of the matters stated. But the question here is not whether matters alleged to have been stated by •Sharp and Davis were true; but simply whether they actually made the statements. If they made the controverted statements, they acknowledged grievous misbe ⁶¹⁴ havior in their capacity as arbiters, and most certainly the jury had a right to take into consideration, their own self-accusations. c It has, however, been supposed that the