Croasdale v. Von Boyneburgk

Opinion by Mr. Justice Mestrezat, The facts found and the authorities cited by the learned trial judge in his opinion disposing of the exceptions to the master’s report are ample to sustain the decree entered by the court below. The owners of the tugboat, John Reese, held the propertjr as tenants in- common: Croasdale v. Yon Boyneburgk, 195 Pa. 377. It appears from the evidence and was found as a fact by the master that no salary was ever paid any managing owner of the John Reese. The accountant as managing owner employed two agents of the tugboat who performed the duties as such and were compensated bjr commissions upon the gross sums they handled. The business of the boat was carried on at the office of one of the agents, the managing owner having no office. The agents kept the accounts of the boat’s receipts and expenditures, paid the crew, paid some of the bills, solicited and obtained business for the boat, and had general charge of her. It was found as a fact that it was the usual and customary arrangement in the business that the managing owner should serve without charge and the agent of the company should be paid a percentage upon such gross receipts as resulted from the agency. It thus appears that under the facts disclosed by the evidence and found by the court below, the duties of the managing owner were not performed by Yon Boyneburgk but by the agents who received the commissions to which he claims he is entitled for attending to the affairs or the business of the boat. [23] The above recited facts would clearly preclude the accountant from claiming a salary for his services as managing owner. He relies, however, on an alleged agreement by the owners of a majority in interest in the tugboat as the basis of his claim for compensation for his services. The evidence shows that neither Mrs. Stotsenberg nor her assignor, the plaintiff, was represented at any meeting when the alleged agreement was made, nor that they, or either of them, had any knowledge that such an agreement had been entered into with Von Boyneburgk. It is equally clear that neither the plaintiff nor his assignor acquiesced in the agreement or consented that Von Boyneburgk should receive a salary for his services as managing owner. But if it be conceded that the majority interest agreed to compensate him for his services and that the minority interest could be bound thereby, the managing owner, however, would be compelled to perform those services before he would be entitled to the compensation. This, as we have seen, he did not do. The two agents conducted the business and. they were paid by commissions upon the gross sums they handled. As said by the court below, these commissions having been paid, it would be inequitable to charge what would virtually be a second compensation for the same services against the plaintiff, neither he nor his assignor having ever consented thereto. It is quite obvious that the appellant did not regard himself as entitled to, nor expect, compensation for his services from the fact that his account shows that he made no charges for them against the boat until more than eighteen months after he assumed the management of the boat and after Mrs. Stotsenberg had sold her interest and this proceeding had been instituted. This taken in connection with the fact that an agent performed the duties and was compensated in the manner in which the managing owner would be paid were he to receive compensation, is convincing proof that the appellant’s right to claim payment for services did not occur to him until the appellee compelled him to account for his management of the business of the boat. The authorities cited by the trial judge sustain him in holding that it was not the duty nor within the authority of the appellant as managing owner to institute a criminal prosecution against Stotsenberg; and hence as against the non-assenting owner of an interest in the vessel, he is not entitled to a [24] credit in his account for the costs expended in the litigation. We can see no force in the suggestion of the master that the appellant as managing owner was morally bound to detect and prosecute a copartner for an alleged embezzlement which occurred some time prior to the date when the affairs of the boat were placed in the hands of the appellant. The purpose of a criminal prosecution is to punish the offender for violating the laws of the commonwealth, and not to enforce the payment of money nor, as in civil proceedings, to restore to the owner the property of which he has been defrauded. The criminal process of the court should not be invoked for any such purpose. While the appellant, like any other person, could have instituted the prosecution against Stotsenberg, it was clearly not his duty as managing owner to do so. The scope of his employment did not include a duty nor the authority to prosecute at the expense of the boat owner a_ delinquent or defaulting owner of a minority interest for the violation of the criminal laws of the state. Such action might be most commendable in him as a citizen who is looking after the morals of the community, but as the managing owner of a tugboat his employers would doubtless prefer that he should not consider it a part of his employment to institute criminal prosecutions against them, or if he did so, that they should not be compelled to reimburse him for such services or protect him against costs he was properly condemned to pay. The costs of this proceeding were properly disposed of by the court below. It was clearly the duty of the managing owner to account not onty to the plaintiff but to all the owners, and when he failed in the performance of this duty and was compelled by legal proceedings to render an account he should be visited personally with the costs. No assignments of error were filed in this case and the appellee would have been entitled on motion to a judgment of non pross. under rule 11. The learned counsel for appellant misapprehended the purpose of rule 92, which requires the appellant to file in the court below “ a brief statement of the errors he alleges to have been made by the order or decree appealed from.” This, however, does not relieve the appellant from his duty under rule 11 to “ specify in writing the particular errors which he assigns, and to file the same in the prothonotary’s [25] office ” of this court. On an appeal, we can consider only such errors in the record as have been properly assigned under the last mentioned rule. A failure to observe either of these rules may, at tbe instance of the other party or on the court’s own motion, impose on the offending party the penalty of having his writ non prossed. The decree is affirmed.