Vassar v. Camp

By the Court, S. B. Strong, J. The contract was I think perfected, so as to make it mutually obligatory upon the parties, when the duplicate executed by M. Vassar &. Co., was deposited in the post office at Poughkeepsie on the 4th of September, 1850. The final proposal by the defendants was made when they deposited their letter, enclosing the contract signed by them, in the post office, on the 30th of August. That proposal remained open and unchanged on the 4th of September, when it was accepted by the plaintiffs in the manner which I have indicated. The general proposition, that a bargain through the mail is closed when the party last agreeing binds himself by any appropriate paper deposited by him in the post office, properly addressed to the other contracting party, was admitted on the argument. It is based upon the principle, that an offer made by one party and accepted by the other constitutes the contract. The assenting minds of the parties then meet. The rule was ably discussed and definitively settled by the court for the correction of errors in Mactier v. Frith, (6 Wend. 103.) But the counsel for the defendant contended on the argument •that the rule does not apply to this case, as their letters declared in effect that they did not intend to be bound until they received an answer from the plaintiffs, with a duplicate of the contract executed by them. In the letter written by the defendants on the 26th of August they say, “ it being understood that if this offer shall be accepted, speedy notice of the same be given [355] to us.” That undoubtedly made it a condition precedent to their being bound that their offer should be promply accepted; and it was so. It was also necessary that speedy notice of the acceptance should be given to the defendants. But the letter does not designate the manner in which the notice should be given; and as the previous correspondence had been conducted by mail, it was reasonable to suppose that it was intended that the notice should be given through the same channel. Now, what is giving notice by mail ? undoubtedly, depositing a letter containing the requisite information, properly addressed, in the post office. The defendants’ letter, as I understand it, required prompt action, but no more action than is necessary in ordinary cases; The notice was promptly given. Their counsel also relied upon a passage contained in their letter dated on the 30th of August, where they say in reference to an expected reply accepting their offer, “as soon as received we shall send amongst the farmers and secure the first lots” (of barley,) as indicating that they did not intend to be bound until such reply should be received. It seems to me, in reference to this, that the remark of the plaintiffs’ counsel was right when he said that this passage merely indicated what the defendants intended to do in accordance with their contract, when they should ascertain that it had been perfected, and not the time when it should become obligatory upon them. Had they intended that their negotiation should differ from the ordinary rule as to the commencement of their obligation, they should have said so, in explicit language. If there is any doubt, it should upon the general principle be construed against the parties using the uncertain terms. The next question is, whether the agreement between the plaintiffs, the Booths, James Yassar and Harbottle constituted a partnership between them. I am clear that it did. The agreement provided that each was to share in the profit and loss. All had a right to the use of the capital, and the profit of each was to be applied at the end of five years in the payment for his share of the capital at the existing appreciation, when he was to receive the legal title to it from the members [356] of the old firm. It seems to me that sharing in the profit and loss, with a right to use the capital, and an inchoate title to.it, constituted a full partnership. In Dob v. Halsey, (16 John. 34,) it was decided that where one contributed, and was to retain the capital, and the other his services, and the net profits were to be shared, there was a partnership, not only as to third persons, but between the parties themselves. That case perhaps goes quite far enough ; but it is undoubtedly right so far as it declares that there need not be a participation in the capital stock. Chancellor Kent says, (3 Com. 25,) “ it would be a valid partnership, notwithstanding the whole capital was in the first instance advanced by one party, if the other contributed his time and skill to the business, and although his proportion of gain and loss was to be very unequal. It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or in lieu of brokerage, and that he be received into the association as a merchant, and not as an agent.” In this case the shares of the incoming associates, in the profits, were not to be received by them as a compensation for their services, but as their portions of the profits of a business in which they were jointly interested, and they were also to be principals and not mere agents. They were therefore full partners. "When the contract on which this suit was brought was signed by M. Yassar & Co. and deposited in the post office, and thereby became operative, the firm consisted of the plaintiffs only. It was then their contract, and not that of the new partnership. The agreement by which the new society was constituted was signed the next day. The execution and (when that is requisite) delivery of a deed give it efficacy. Until then it is inoperative. That is the rule where a deed is requisite for the com summation of a transaction, as in transferring a title to real estate. It may not be strictly applicable to the institution of a partnership association. That may be formed by a verbal agreement, and then it dates from the time when the agreement was made. When there is a written agreement, the presumption is that the contract was made on the day when the agreement was ex [357] ecuted and (when a delivery is necessary) delivered. In this case there is nothing to evince that there was any definite contract anterior to the execution of the written agreement. The new partnership, when formed, was to refer hack to the 2d of September, two days before the agreement on which this suit was brought was executed by M. Vassar & Co. That, however, does not make it out that the new firm was a contracting party with the defendants. It would merely show that as between the partners themselves the new associates would be interested in the performance of this contract if it was included in the retrospective matters referred to in the partnership agreement. Even then, however, it may be doubted whether the plaintiffs might not maintain a suit in their own names, for themselves and as trustees for their associates. (Code of 1851, § 113.) It is not necessary, however, to decide that question, as the partnership agreement does not in terms either refer to or include the contract between the parties to this suit; and Mr. Booth, one of the new associates, swears that it was not in fact included but was expressly excluded from the antecedent transactions of the old firm, in which the remaining parties were to be interested. It appears to me that the suit was rightly brought in the names of those only by whom and to whom the contract was made. [Dutchess General Term, October 4, 1852. Barculo, Brown, and S. B. Strong, Justices.] The objection to the admissibility of Mr. Booth as a witness was waived by the defendants’ counsel on the argument. The judgment rendered at the special term should be affirmed, and the motion for a new trial denied.