Stewart v. Robinson

Sharpstein, J. The parties entered into an agreement in writing, in which, among'" other things, it was stipulated that the plaintiffs should make a proper application to the Secretary of the Interior to obtain a rehearing of a matter which had been heard and decided adversely to the interest of the defendant by said secretary; and that in the event of such rehearing being granted, the defendant should pay to plaintiffs fifteen hundred dollars.

The plaintiffs brought this action to recover said sum, for which a judgment was entered in their favor against the defendant, who appeals therefrom, and from the order denying his motion for a new trial.

The record states that “ it was admitted by the defendant that the plaintiffs had used their best efforts, and with legal skill, to obtain the rehearing, mentioned in [165]the said contract; that proper application was made by the plaintiffs, accompanied with a brief presenting all that could be presented to obtain a rehearing from the Secretary of the Interior, and if said rehearing was in fact granted by the Secretary of the Interior, they were entitled to recover; and it was admitted by plaintiff that unless such rehearing was granted by said secretary, the plaintiffs were not entitled to recover.”

The evidence admitted to prove that a rehearing was granted was objected to, and it is upon the exceptions of the defendant to rulings of the court upon said objections that we now have to pass.

To prove that a rehearing was granted, the plaintiffs introduced in evidence two telegrams and a letter from the secretary, notifying the plaintiff Stewart that oral argument would be heard in the case on certain stated days. Stewart further testified that on the 21st or 22d of October, 1883, he made an oral argument in the case before the secretary, after which he addressed the following communication to the commissioner of the general land-office:—

“Department oe the Interior, Washington, Dec. 13, 1883. “The Commissioner of the General Land-Office, —Sir: I have considered a motion for review of the decision rendered by me on the fourteenth day of April, 1883, in the matter of the survey of the rancho Santiago de Santa Ana. Upon the hearing of the motion in October last, the whole case was fully presented and submitted upon oral and written arguments. I have attentively considered such arguments, and have examined with care my decision of April last, and am of the opinion that I should adhere to such decision. If I am in error, the parties claiming the disputed territory are not without remedy in the court. The matter of the survey has been pending many years, and the right of a large number of persons, settlers upon the lands, are involved in the contest. I