Kirk v. Hartman & Co.

[105] The opinion of the court was delivered, May 5th 1870, by Sharswood, J. — Whether the defendants below, Hartman and Bailey, were general partners in any kind of business did not appear, nor was it material. It would be sufficient to show that they were jointly concerned in the particular transaction in which the plaintiff Kirk was employed as agent or salesman. That was to form a company, to be called The Pittsburg and Connellsville Mining and Manufacturing Company, and to dispose of its stock, as well as to sell stone-coal and coke. That Bailey was a party to this scheme with Hartman can scarcely be questioned. His letter, dated September 27th 1866, alone is very persuasive evidence of it. He speaks of Mr. Hartman and himself having called on certain persons and obtained their consent “ to permit us to refer any of your citizens to them.” “We intend,” he proceeds, “ organizing the company the coming month, at which time the first instalment will be called in, and the balance will be called for as fast as it is required, to be expended in the erection of the works.” It is to be noted that this letter is signed James M. Bailey, not S. H. Hartman & Co. per Bailey, as some of the other letters are, from which the inference is attempted to be drawn that non constat that he was not a mere clerk. So the letter of February 12th 1867, signed James M. Bailey, says: “Mr. S. H. H. has gone to Ky. to attend to some of our coal interests in that state.” In all the correspondence, as far as it was conducted by him, he speaks the language of a principal; and the letters of April 9th and May 8th 1867, by which the plaintiff was dismissed from their employment, show plainly that he knew and had ratified the contract sued upon, which had been executed under seal by his associate Hartman. This disposes of the 1st, 8d and 4th assignments of error. Nor is it less clear that no error was committed by the learned judge in instructing the jury that the contract sued upon was binding upon the parties for one year. When, indeed, a person is employed as an agent, traveller or salesman, for no definite time, the law does not imply a hiring by the year, but at the will of both parties, and the principal has a right to terminate it at any time, and to discharge the agent from his service without notice: Coffin v. Landis, 10 Wright 426. “ No doubt,” as it is said in that case, “ there is a class of contracts for the employment of servants where the law presumes the contract to intend a yearly or monthly employment, though nothing is said of the duration of service. They are more numerous in England than in this country. They relate to contracts of hire of menial domestic and husbandry servants.” That was an employment to sell land, as this was to sell stock. But the written agreement in this case by fair intendment or construction of its language, is for one year, although it does not expressly so provide. [106] “ For Kirk’s services we agree to pay him three thousand dollars in equal quarterly payments.” According to the lexicographers, “quarterly” is the same as “quarter-yearly,” and means “ once in a quarter of the year.” Such, too, is the received popular sense of it, which we are bound to notice and regard. He was to be paid a fixed sum, and if it was for no fixed time, as, for example, for his entire services when all the stock was sold, how could it possibly he made in quarterly payments, even supposing that word to signify simply a division into four parts? This disposes of the 5th and 7th assignments. The 8th error assigned is to the instruction “ that if Mr. Bailey induced plaintiff to believe that he was the partner of Hartman in this transaction, he is now estopped from denying the partnership.” Nothing certainly is more firmly established than that if a man holds himself out, or knowingly suffers himself to be held out as a partner, on the faith of which others trust or enter into contracts with the firm, he is responsible whether he is in point of fact interested as a partner or not: Collier on Partnership, § 86. It is not important for what reason the rule was established. It was, says Mr. Collier, “ upon principles of general policy to prevent the frauds to which creditors would be liable if they were to suppose that they lent their money upon the apparent credit of three or four persons, when in fact they lent it only to two of them, to whom, without the others, they would have lent nothing.” It may, however, very well stand upon the ground of estoppel. All estoppels shut the mouth of the party, because it would be a fraud in him to speak, whether his original act or declaration was intended to deceive or not. The 9th error is not properly assigned according to Rule VIH., 6 Harris 578, and we must treat it as none. The 10th assignment is to the rejection of the offer to prove that in connection with the statement of plaintiff that he could “sell all your stock easily,” the plaintiff stated that'if he should fail in selling the stock it should not cost the company anything. It was not proposed to show that this was said at the time the contract was made, and that upon the faith of such assurance, it was executed as in Bollinger v. Eckert, 16 S. & R. 422, Rearich v. Swinehart, 1 Jones 233, and other cases of that class. It was a bald offer to introduce a new term into a written contract by parol evidence of a verbal declaration at some undefined time, without a pretence of fraud or mistake in the drawing of the contract. Of course the evidence was rightly rejected. The 11th assignment is that the court below erred in overruling an offer to prove in substance that in comparison with other agents employed to sell stone-coal and coke in different Western towns, the plaintiff had effected but few sales: this for the pur [107] pose of showing negligence and default on the part of the plaintiff under his contract, and justifying his discharge. But it would he a very severe rule to apply, and justified by no principle of law, that comparative want of success in making sales by a traveller or salesman shall be evidence itself of negligence and misconduct. Yet upon that must the offer stand. It would have introduced a very extensive and embarrassing investigation as to the sales made by other agents, and would have been totally irrelevant to any question in issue in the cause. This disposes of all the assignments of error except the 2d— that under the pleadings and evidence in this case, the plaintiff cannot recover. “If any specification embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors as alleged:” Rule VI., 6 Harris 578. It would seem, however, by the oral and printed arguments of the counsel for the plaintiffs, that the question intended to be raised by this assignment is whether where there is a contract of service for a definite period, and the servant is dismissed without cause before the expiration of the time, he can maintain debt for the stipulated wages or salary after the term has ended. That question must be considered as now settled in King v. Steiren, 8 Wright 99. It was there held that an employee for a determinate period, if improperly dismissed before the term of service has expired, is primfi facie entitled to recover the stipulated compensation for the whole time; and that if he was engaged in other profitable employment during the term, or such employment was offered to him and refused, the defendant, upon whom is the burden of proof, may show it in mitigation of damages. However it might be on a general count for work and labor done, the declaration here was special on the agreement, averring the discharge and the plaintiff’s constant readiness to perform the agreement on his part. Now debt lies upon any contract in which the certainty of the sum or duty appears: Buller’s.Nisi Prius 167. If, as we have seen, the plaintiff primd facie was entitled to recover the whole amount of the stipulated compensation, it answers all the conditions of the form of action, and cannot be affected by the fact that it is open to be reduced by evidence on the part of the defendant. Judgment affirmed.