Rep., 878. Your Petitioners ask for a Writ of Certiorari on the authority of Messenger vs. Anderson, 225 U. S. 436.

The opinion of the learned Circuit Court of Appeals on the second appeal concludes as follows (Record, fol. 678):

"The majority of the Court which heard the case on the second writ of error have felt it their duty, however, to state fully and frankly their view of the law and to point out herein and why we differ from the decision rendered when the case was here before. We may be in error, or the majority of the Court at the former hearing may have been in error; we are certainly not both right. It may be that the learned counsel who argued this cause may still find in this unusual situation, involving as it does a considerable amount of money, some way of ascertaining which of these conflicting views is correct. But however that may be we have no alternative and the judgment must be affirmed."

The respondent, Annie S. Simons, was the plaintiff below. She brought an action at law against the defendants, as executors, to recover for breach of an alleged contract made by their testatrix, Frank Leslie (Frank Leslie was a woman), to give Mrs. Simons a legacy of $50,000. Mrs. Leslie's will gave her only $10,000. The action was on an alleged express oral agreement to leave a legacy of $50,000.

On the first trial in the District Court the judge presiding (Hon. Augustus N. Hand) directed a verdict for the defendants, on the ground that there was no evidence sufficient to establish a contract between Mrs. Leslie and the plaintiff. On plaintiff's writ of error, the Circuit Court of Appeals reversed, holding that there was evidence from which a jury would have been warranted in finding that the alleged contract was made. (Simons vs. Cromwell, 262 Fed. Rep., 680.)

On the second trial in the District Court before a jury (Judge Learned Hand presiding), on evidence for the plaintiff identical with the evidence on the first trial, the issue was submitted to the jury, and the jury found in favor of the plaintiff. On defendant's writ of error, the Circuit Court of Appeals affirmed the judgment of the District Court in favor of the plaintiff, the determination of the Circuit Court of Appeals being therefore final.

The majority of the Circuit Court of Appeals, however, on the second appeal was strongly of the opinion and in terms held that the decision on the first appeal was erroneous, and that there was, on neither trial, sufficient evidence to warrant the jury in finding that Mrs. Leslie ever made a contract to leave a legacy to the plaintiff. The affirmance was on the sole ground that its decision on the first appeal was "the law of the case" and that, therefore, the Court had "no alternative," being bound by its decision on the first appeal.

On the first appeal the case was heard by Judges Ward, Rogers and Manton, and on the second appeal by Judges Rogers, Manton and Mayer. The majority opinion on the first appeal was written by Judge Ward. Judge Manton concurring and Judge Rogers dissenting. (As pointed out by Judge Rogers in his opinion on the second appeal, the official report

of the case on the first appeal does not show his dissent [fol. 605]. This was due to an error in the Clerk's office.) On the second appeal the majority opinion (fol. 592) was written by Judge Rogers, Judge Mayer concurring. Judge Manton wrote a concurring opinion (fol. 679), in which he expressed his agreement with the decision on the first appeal, in which he had concurred.

Judge Rogers' opinion states (fol. 671):

"I am authorized by Judge Mayer to say that he fully concurs in the views expressed herein that there is no evidence whatever that any promise or agreement was ever made by Mrs. Leslie to Mrs. Simons that she would leave $50,000 to her by will, and therefore that there was no question to be submitted to the jury under the cause of action pleaded. "The majority of the Court, as constituted at the present hearing, are convinced that the conclusion reached on the first hearing was errone

ous

The question as to which the Court now finds itself in disagreement with its decision on the first appeal is this:

The plaintiff was a first cousin of Mrs. Leslie. The alleged contract on which she sues is the usual agreement to leave a legacy in consideration of services to be rendered by the promisee. The evidence shows that the plaintiff, after the making of the alleged promise by the testatrix, did render certain services-chiefly as an occasional companion,-the rendering of which C, or the promise to render which) would have constituted sufficient consideration for a promise to leave a legacy. The only question is whether the alleged contract was ever made.

The only witness who testified on this issue was the husband of the plaintiff, Mr. Robert H. Simons, and his one and only piece of testimony on this issue relates to a conversation which he had with Mrs. Leslie in March, 1902, years before the death of Mrs. Leslie in 1914.

Mrs. Leslie had come to Charleston, S. C., from New York to visit the plaintiff and her husband. The plaintiff had accompanied her on the journey. A day or two after their arrival in Charleston Mr. Simons had the following talk with the testatrix:

Mr. Simons: "Cousin Florence, my wife tells me you are going to leave her $50,000 in your will, and I wish to thank you."

Mrs. Leslie: "Robert, I am due Annie that money for what she has done, rendering many services in my present condition, and I propose to call on her in the future." (fols. 275-276.)

Mr. Simons thanked her and she never mentioned the subject again (fols. 295-296).

There is absolutely no other evidence in the case tending to prove the making of the alleged contract.

The majority of the Circuit Court of Appeals on the second appeal held that this testimony was not sufficient to take the case to the jury. Inasmuch, however, as this was exactly the same evidence which the same Court on the first appeal had held sufficient to warrant a jury in finding

that the alleged contract had been made, the learned Court on the second appeal felt that it had no choice but to affirm the judgment for the plaintiff.

66

On the second trial, plaintiff's husband admitted, on cross-examination, that Mrs. Leslie did not say that she had agreed" or "promised," or even that she intended" or "expected" to leave a legacy to the plaintiff (fols. 618-630; 294-306). Her actual language consisted merely of the words quoted above. The learned Court did not think that these admissions of the witness on cross-examination on the second trial differentiated the evidence from the evidence on the first trial, since his testimony as to the actual words used by Mrs. Leslie was the same on both trials (fol. 631).

III. (a) This case has been in this Court before on a mandamus. (Ex parte Simons, 247 U. S., 231.) Nothing, however, now turns upon the point decided by this Court on that proceeding. (See opinion of Judge Rogers, fols. 598-603.)

(b) The complaint in the case originally contained three counts,-one on an alleged express oral agreement to leave the $50,000 legacy; one on an alleged agreement to leave the plaintiff by will the reasonable value of her services; and one on an ordinary quantum meruit. The issues raised by the second and third of these counts were disposed of adversely to the plaintiff on the first trial (a verdict for the defendants being directed as to them), which decision was affirmed on the first appeal; and on the second trial and the second appeal the same disposition was made of these issues.

IV. Your petitioners respectfully show that of the five judges who have had to pass upon the sufficiency of the plaintiff's evidence to establish the alleged contract, three-namely, Judge Augustus N. Hand in the District Court and Judges Rogers and Mayer in the Circuit Court of Appeals have held that the evidence was insufficient to establish the alleged contract, while two-namely, Judges Ward and Manton have held to the contrary. (Judge Learned Hand, who tried the case on the second trial, being bound by the decision of the Circuit Court of Appeals on the first appeal, was not called upon to decide and expressed no opinion on the question.)

V. Your petitioners respectfully show that the situation in this case is therefore an extremely unusual one, and one which will warrant this Honorable Court in allowing a certiorari, in that

(a) The case of Messenger vs. Anderson, 225 U. S. 436, is authority for the allowance of the writ in this case. In that case this Court allowed a certiorari to review the decision of a Circuit Court of Appeals construing a will, where that Court, on a subsequent appeal, had held that "the law of the case compelled it to adhere to its construction of the will on an earlier appeal.

(b) The decision of the Circuit Court of Appeals on the first appeal is clearly in conflict with the New York decisions on the question. Under the New York authorities it is plain that the plaintiff would have been non-suited if she had sued in a New York court.

(c) The Circuit Court of Appeals misapplied the rule of "the law of the case," and in this respect its decision is in conflict with its own recent decision in Johnson vs. Cadillac Motor Car Co., 261 Fed. Rep., 878, the distinction between the cases taken by the Court being unsound.

(d) "In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the Court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. (Messenger vs. Anderson, supra, at p. 444.) The law of the case expresses a rule of public policy. The public policy of the rule prevents the courts, in general, from reconsidering questions already decided, except in unusual cases. Where, however, a Court does consent to reconsider, and, upon thorough and conscientious reconsideration, concludes firmly and expresses its conclusion that its former decision was erroneous, the situation is reversed, and public policy requires that it should correct its admitted error, except in unusual circumstances.

(e) The correction of the Court's admitted error would not prolong the litigation, by requiring still another trial, since the Court now holds that the directed verdict on the first trial should have been affirmed.

(f) The situation is also analagous to the situation in which this Court is asked to pass upon a question concerning which the decisions of the Circuit Court of Appeal in different circuits are conflicting.

(g) In the opinion of three of the five judges who have passed on the question, the present judgment in favor of the plaintiff is, as a matter of law, unsupported by any evidence whatever.

For the foregoing reasons your petitioners respectfully represent that the case is one of gravity and importance, and they therefore respectfully pray that a Writ of Certiorari may be issued out of and under the seal of this Court, directed to the United States Circuit Court of Appeals for the Second Circuit, commanding said Court to certify and send to this Court, on the date to be designated in said writ, a full and complete certified transcript of the record of all proceedings of the said Circuit Court of Appeals in this case, to the end that the said case may be reviewed and determined by this Court as provided by law, and that your petitioners may have such other and further relief and remedy in the premises as to this Court may seem proper, and that the judgment of the Circuit Court of Appeals for the Second Circuit, affirming the judgment of the District Court for the Southern District of New York, be reversed, with directions that judgment shall be entered for your petitioners, the defendants. And your petitioners will ever pray.

William Nelson Cromwell

Louis H. Cramer

As executors of the Last Will and Testament of Frank Leslie, deceased, by

Edgar T. Brackett
Philip L. Miller

CERTIORARI FORM XV.-STIPULATION FOR DISMISSAL OF APPEAL ANNEXED TO PETITION.

UNITED STATES SUPREME COURT.

LEONORA A. ARNOLD and THOMAS E. Arnold,

her husband,

Complainants and Appellants,

vs.

CHARLES A. CHESEBROUGH, individually as Executor and Trustee under the last Will and Testament of Margaret Chesebrough and Elizabeth Lounsbury, as Executrix of the last Will and Testament of Stephen R. Lounsbury, deceased,

Defendants and Appellees.

At the time of the entry of the decree of the Circuit Court of the United States for the Eastern District of New York, dismissing the bill of the petitioners herein, the complainants in that suit, upon the merits, the construction of the Evarts Act was so unsettled and doubtful that the petitioners were advised by their counsel that the only safe practice for them to pursue was to take two appeals: one to the Circuit Court of Appeals upon the whole case; and the other to the Supreme Court of the United States upon the jurisdictional question involved as to whether a Court of Equity had jurisdiction of the complainants' suit, and if not, whether the decree should not have been for a dismissal of the bill without prejudice instead of upon the merits. In view of the recent decision of the Chief Justice of the United States in the Circuit Court of Appeals for the Seventh Circuit, in the case of World's Columbian Exposition et al. vs. U. S., 56 Fed Rep. 645, it is hereby stipulated and agreed that in case this Court shall consider that the pendency of this appeal is a bar to, or in any way prejudicial to the issuance of the writ of certiorari to said Circuit Court of Appeals, which is herewith applied for, then this appeal to this Court shall be dismissed at the costs of the appellants. Dated March 16, 1894.

On this 16th day of March, 1894, before me the subscriber personally came and appeared Leonora A. Arnold and Thomas E. Arnold, her husband, to