Overton v. Ross
Overton v. Ross (1803) discussed whether the renter of a mill was liable for the repairs to a mill that was destroyed due to circumstances beyond the renter's control. Wythe heard this case as the chancellor for the Superior Court of Chancery of the Richmond District, one of the three Chancery Court Districts that were created after the Virginia Assembly dissolved the High Court of Chancery in 1802.
David Ross leased land and the mill on it for seven years from Richard Morris, who was acting as an agent for Richard and Elizabeth Overton. The lease said that Ross would be responsible for the construction of certain buildings, making improvements, paying taxes, and restoring the mill "in tenentable repair" by the end of the lease term.
In January 1784, an unexpected ice movement beyond Ross's control destroyed the mill. Ross believed he was not obligated under the lease to rebuild the mill or continue paying rent, but the Overtons disagreed. The Overtons and Ross brought the case to arbitrators. In 1784, the arbitrators issued a decision stating that Ross was obligated to continue paying rent and to "perform the other covenants contained in the said lease".
The Overtons later filed suit in the common-law side of Richmond District Court, claiming that Ross failed to uphold his responsibilities under the lease, and that he therefore owed the Overtons £6000. Ross stated that he had upheld all his duties under the lease, and that nowhere in the arbitrators' decision was there mention of a possibility of £6000 in damages. The court awarded the Overtons £3500 in damages plus court costs, and Ross appealed the decision to the Virginia Supreme Court of Appeals.
Overton v. Ross was not reported in the second edition of Wythe's Reports, 1852. Wythe published an informal opinion in pamphlet form—which he subtitled a 'prolegomena'—sometime in 1805 or 1806, probably using Thomas Nicolson in Richmond, Virginia, as his printer.
The Supreme Court of Virginia's Decision (1802)
The Supreme Court affirmed the District Court's decision and awarded costs to the Overtons.
Ross's first objection to the District Court's decision was that the date the Overtons claimed the contract was signed in their complaint was different than the date given in the arbitrators' decision. The arbitrators said that the contract was signed on May 22, 1784. In their complaint, the Overtons said that they signed the contract on ___ 25, 1784 (they left out the month). Ross argued that this discrepancy between dates voided the agreement. The Supreme Court said that because the parties agreed on all other points, in a situation where the plaintiff gave no date or an impossible date for the contract signing in the complaint, the plaintiff can plead that the contract was signed on any day that the plaintiff can prove the contract was delivered. Because the arbitrators must have had a copy of the contract signed May 22, 1784, the Overtons could use that as the alleged date the contract was signed.
Ross's second objection was that the arbitrators made a mistake in interpreting the law when they required Ross to continue paying the rent and performing other duties under the rental contract, even after the mill was destroyed by an event beyond Ross's control. While a court normally should not overturn an arbitrator's decision, it can do so in situations in which the arbitrator made an error of law. The Supreme Court said that this question of law was a doubtful one that required substantial argument on both sides to determine the answer. Courts will not overturn an arbitrator's decision just because the arbitrator erred in interpreting a legal question that a reasonable person thinks could go either way. Ross also argued that the covenant of quiet enjoyment meant that the Overtons insured the property against all accidents, but the Court said that the covenant only protected against legal claims, not a "separation of continuity" such as robbery or loss of property through destruction.
Wythe's Discussion of the Supreme Court Decision
Wythe dissected the Supreme Court's decision, bit by bit.
Wythe said that the Supreme Court was dodging the issue of the discrepancy between the date the Overtons alleged the contract was signed and the date given in the arbitrators' decision. Contrary to the Supreme Court's contention, "the 25th of 1784" is just as much a date as "May 25th, 1784". The Aeropagus would have considered "the first date of X Olympiad" a date, even if the month or day of the month were omitted. No philosopher, whether Aristotle, Ramus, Milton, or Duncan, would instruct their students to make such a large assumption as to say that the Overton's allegations had "no date". Wythe also cited to John Locke's Essay on Human Understanding for further support. At any rate, the Overtons said that the contract was signed on the 25th, which cannot magically become the 22nd (the date cited in the arbitrators' decision) no matter how hard they try.
Wythe said that the question of whether the Overtons guaranteed Ross against all forms of loss was the wrong one; the proper question was whether Ross should still be liable for rent after the destruction of the mill, which Wythe compared to a scene described in Homer's Odyssey.
Wythe said that there were plenty of previous decisions in which courts had said they could properly assume appellate jurisdiction over arbitrators' decisions, regardless of whether the arbitrators had made a mistake of fact or law. The doubtfulness of the law and the facts make this case an especially strong candidate for a new trial or appellate hearing, rather than removing it from a court's jurisdiction. If a court in equity, such as the Chancery Court, were to follow English common-law precedents to determine when it could award a new trial, then Wythe opined that it would find itself as badly misled as Demea was by his servant Syrus in Terence's comedy The Brothers and equally worthy of derision for its gullibility. Wythe added (for emphasis, perhaps?) that this is a situation in which it would be better if English caselaw precedent had simply been consumed by the Lethe (one of the rivers flowing through Hades that inflicted forgetfulness on anyone who drank from its waters), much as Overtons Mill was overtaken by the James River.
Wythe wondered aloud what might have resulted had Ross employed more attorneys at the Supreme Court; perhaps, Wythe pondered, the Supreme Court might have decided that a landlord was responsible for insuring rental property.
Wythe also criticized the Supreme Court opinion for inconsistency, saying that "(t)he question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in (a) sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful." To Wythe, the legal question's doubtfulness in the Supreme Court opinion seemed to appear and reappear as easily as Gyges of Lydia as described in Republic.
Wythe mulls over what is truly equitable in a situation in which the legal rule is in doubt. If an even number of judges are assumed to fall on both sides of the argument, then a defendant should be acquitted. Wythe notes that "the voice of wisdom, Minerva herself" says in Aeschylus's play The Eumenides, that "the law absolve the matricider/For equal votes the court divide." One of Francis Bacon's maxims states that when rules of law cross each other, the worthier principle should be upheld.
The Chancery Court's Decision
After the Virginia Supreme Court upheld the common-law Richmond District Court's decision, Ross filed a bill in equity with the Richmond District Superior Court of Chancery, which heard the case on May 25, 1803. Wythe granted Ross a permanent injunction against the Richmond common-law District Court's decision and awarded Ross court costs for the Chancery Court stage.
Wythe begins the text of his opinion by describing the many ways beyond a renter's control that a leased building can be destroyed. Wythe quotes the description in Virgil's Georgic of Mount Etna erupting, the sacking of Troy as described in Virgil's Aeneid, and Pliny the Elder's description of the nature of wind in his Natural History. Wythe also cites Titus Lucretius Carus's description of meterological phenomena in his book On the Nature of Things and Tacitus's description in his Annals of a whirlwind that destroyed Campania.
Wythe says that Ross's situation is similar to those described in the ancient works. In such a situation, where a tenant lost their property through no fault of their own, no judge could find it equitable to force the tenant to continue to pay rent. This is one of those situations a court of equity was designed for, a situation in which equity can properly mitigate the harsh results the common law would dictate. A judge in equity investigating Ross's situation should ask whether such a disaster was rationally expected; and if so, whether the parties agreed that the tenant should continue paying rent until the mill was rebuilt.
Wythe said that the arbitrators' decision did not follow the law. He cited Justinian's Digest for the idea that a contract is a reciprocal obligation. While the mill remained operational, the Overtons had a right to demand work and rent from Ross. Ross, in turn, had the right to work the mill. Once the mill disappeared, Ross's obligation to pay rent or to work on the mill ceased.
Supreme Court of Virginia's Decision (1808)
Morris and the Overtons appealed Wythe's decision to the Virginia Supreme Court of Appeals, which reversed Wythe's decree.
Supreme Court judge (and former Wythe student) St. George Tucker joined judges Spencer Roane (also one of Wythe's students) and William Fleming in stating that a court of equity should not grant relief in a case in which a court of law has already decided on the same points of controversy. Judge Fleming expressed sympathy for Ross's position and said that he might have ruled differently had he been one of the arbitrators, but that Ross was still bound by the arbitrators' decision.
- George Wythe, The Case of Overtons Mill: Prolegomena (Richmond, VA: [Thomas Nicolson], 1805?).
- Benjamin Blake Minor, ed., Decisions of Cases In Virginia, By the High Court Chancery, with Remarks Upon Decrees By the Court of Appeals, Reversing Some of Those Decisions, by George Wythe (Richmond, Virginia: J.W. Randolph, 1852), xli.
- Minor had access to a bound volume of pamphlets which had belonged to James Madison, and was then in the possession of William Green of Culpeper, Virginia. The Catalogue of the Choice and Extensive Law and Miscellaneous Library of the late Hon. William Green, LL.D.,... to be sold by Auction, January 18th, 1881, at Richmond, VA. (Richmond: John E. Laughton, Jr., 1881), lists the volume as follows (p. 200):
2325. WYTHE'S REPORTS. Aylett & Aylett, Richmond: 1796; Field & Harrison, Richmond: 1796. WYTHE (GEO.). Case upon the Statute for Distribution, Richmond: 1796. Wilkins & John Taylor, et als.; Fowler & Saunders. In one vol., 12mo. Auto. of President James Madison. Ms. notes. A rare collection of the Original Imprints, supposed by the late possessor to be unique.
- George Wythe, Case of Overtons Mill: Prolegomena (Richmond, VA: Thomas Nicolson, 1805?).
- Although not listed in Charles Evans, American Bibliography, vol. 11 (1942), Nicolson had published Wythe's Reports in 1795, and at least seven other supplements for Wythe, in 1796 and after.
- Ross v. Overton, 7 Va. (3 Call) 309 (1802).
- John Locke, Essay on Human Understanding, Book 3, Ch. 6.
- "Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ Πήλιον εἰνοσίφυλλον". "To heave upon Olympus Ossa strove,/On Ossa, Pelion's vacillating grove". Wythe, The Case of Overton's Mill, 9, citing Homer, Odyssey: Book 11, ln. 315-16. This refers to Otus and Ephialtes, the Aloadae. The Aloadae were giants who were sons of Iphimedeia and Poseidon. The Aloadae sought to storm heaven by piling Mount Ossa on Mount Olympus, then Mount Pelion on top of Mount Ossa.
- Terence, Adelphoe (The Brothers), Act 4, Scene 2.
- Wythe, Case of Overtons Mill, 13.
- Plato, Republic 2. According to Plato's story, Gyges was a shepherd who discovered a magic ring that allowed him to become visible or invisible depending on the direction he turned its bezel.
- Wythe uses the Latin phrase sententiis paribus reus absolvitur. Wythe, Case of Overtons Mill, 14.
- Here, Wythe refers to the Roman goddess Minerva instead of the Greek goddess Athena, even though he is citing a play written by a Greek poet. This may have been normal for a scholar of his time who was trained in the classics. Until modern times, normal practice for English translators was to use the Latin equivalent of ancient Greek names, since that is what they were used to from reading Virgil and Ovid in school. Homer, Robert Fagles (trans.), "The Spelling and Pronunciation of Homeric Names", in The Iliad (New York: Penguin Books, 1991), 65.
- The Eumenides is the concluding play in Aeschylus's Oresteia trilogy, which details the breaking of the curse on the House of Atreus. In The Libation Bearers, the second play of the trilogy, Orestes (spurred on by his sister Electra and the god Apollo) kills his mother Clytemnestra, to avenge the death of his father (and Clytemnestra's husband) Agamemnon. In The Eumenides, the Furies (spirits who avenge patricide) seek to execute Orestes for his deed. Athena (whom the Romans equated to their goddess Minerva) steps in and forms a jury of twelve people to judge Orestes's guilt, stating that a tie would result in acquittal. The jury splits evenly, and Athena convinces the Furies to accept Orestes's acquittal.
- Francis Bacon, "Verba fortius accipiuntur cont a proferentem", The Works of Francis Bacon: Law Tracts. Maxims of the Law.
- In 1802, the Virginia Assembly split the High Court of Chancery into three Superior Courts of Chancery, each court assigned to a geographic district, to decrease the equity courts' backlog. Thomas Jefferson Headlee, Jr., The Virginia State Court System, 1776- (Richmond, VA: Virginia State Library, 1969), 13. Wythe became the chancellor for the Richmond District.
- "______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;" Virgil, Georgic, Lib. I, ln. 471-73.
- "______________jam proximus ardet Ucalegon". Virgil, Aeneid, 2.311. In this line, Aeneas notes that he is next to Trojan elder Ucalegon's house, which was burned by the Achaeans when they sacked Troy.
- Pliny the Elder, C. Plinii Secundi Naturalis Historiæ, Tom. I, Lib. II, Cap. XLVIII. Pliny the Elder died while investigating Mount Vesuvius's eruption; perhaps Wythe had this in the back of his mind when he included these cites in his litany of natural disasters?
- Titus Lucretius Carus, De Rerum Natura, 6.424.
- Cornelius Tacitus, Annals, 16.13.
- Justinian Dig. 50.16.19.
- Morris v. Ross, 12 Va. (2 Hen. & M.) 408 (1808).