Duff v. Maguire

Ames, J. The agreement under which these parties have acted, although it left it entirely at the discretion of the subscribers, upon the receipt of the report which the plaintiff was to make, whether they would prosecute or abandon the contemplated mining operation, was an unconditional stipulation that the preliminary investigations in California should be made by the plaintiff on their joint account, and for their joint benefit. It must have been understood that this investigation would occupy a considerable length of time, and would be attended with considerable expense. The instructions to the plaintiff required that he should “ visit the mines in the various localities; ” that he should obtain the opinion and aid of “ competent and reliable judges of mining property; ” that he should make a thorough and careful examination, and should make a report, in which, he was told, he could nob be “too particular and specific ” in giving all the points upon which he should base his decision. He was to find a valuable property, and to furnish them with such information respecting it that they should be able to judge for themselves whether it would be for their interest to go on with the enterprise. The report finds that he accordingly went to California, and “ proceeded with diligence and in good faith, and with competent skill and judgment,” to execute his commission; that his charges for his “ fair and reasonable expenses ” as such agent are correct, and that six months of his time were “fully and properly” occupied in making the journey and rendering the services required by his instructions. The association saw fit not to make the investment which he advised. It has had, however, the benefit of his services and expenditures, and should equitably be charged with them, unless some reason why they should not be so charged can be found in the terms of the association or in the letter of instructions, or in the legal relations of the parties to each other. [92] The defendants insist that the proper inference from the language of those documents must be, that the plaintiff was not entitled to anything on account of his expenses beyond the sum of $500, which they have already paid; and that he was to receive no compensation whatever for his time and services in any event, unless a majority of the subscribers should accept the mining property which he should bargain for and recommend, and unless they should also determine to erect machinery upon the property and put it in working order. But we do not so construe the contract. The stipulation that they should pay the sum of $100 each was in order to defray his travelling expenses “ to California; ” and that sum was barely sufficient to pay the expense of travelling to San Francisco and back, leaving little or nothing for the expense -of visiting the mines and doing the business which was the sole object of the journey. Under the contract, that amount was due on demand and in advance, before he had started on the journey. There is nothing that indicates that he was expected to keep his expenses within that sum, or that the expenses in California were to be at his exclusive cost, and it appears that he did not start upon the journey upon any such understanding. We see no ground whatever for the claim that the payment of $100 each was to be understood as relieving the defendants from any further payment, necessary to complete their equal and just proportion of the plaintiff’s fair and reasonable expenses in the execution of his commission. With regard to the compensation for the plaintiff’s services, it is true that, with the exception of the general profession'of a disposition to deal justly with him, and to have no difficulty on the subject, the only express promise refers to a state of things which has not arisen. If it should be decided to erect machinery upon the property which he should select and recommend, the question of his “ salary ” was to be left open, to be decided when he should have placed the mill and property in working order. The letter assures him that he should be paid as well as others occupying similar positions ; “ whatever property we decide to accept, it is with the understanding that you are to act as the general superintendent and chief manager.” It appears to us that all these [93] expressions must be understood as indicating what the association would be willing to do, if they should adopt the plaintiff’s recommendation and go forward with the enterprise ; and that they do not refer and are not applicable to the contingency, which has actually occurred, of a breaking down of the scheme in consequence of their refusal to go on with it. The contract and the letter are both entirely silent as to what is to be done in that event, A promise to pay a regular salary to the plaintiff as the superintendent and manager of a proposed business, if it should be decided to go into it at all, does not necessarily import that, if the project should be given up, he is not to be paid for valuable services, rendered at their request, in obtaining and reporting the information upon which they are to found their decision. We find nothing in the contract or the instructions, which, either in express terms or by necessary implication, imports that the plaintiff was to work for nothing if the enterprise fell through. He undoubtedly expected to obtain the position of superintendent, if the scheme should be carried out, and was willing to risk something under that expectation; but we see no ground for saying that he ever agreed to take upon himself more than his just and equal proportion of the loss, upon the failure of the enterprise. The objection that one partner in a joint adventure cannot charge a compensation for his services in the joint business does not appear to us to be applicable to the case. The subscribers to the contract had not become partners in a joint undertaking when the plaintiff started on his journey, and it was wholly uncertain whether they would become so or not. It was thought necessary, before deciding that question, that certain information should be obtained and laid before them, and they accordingly made the plaintiff their agent to do the whole of that needful preliminary business. A compensation is necessarily and equitably implied under such a special arrangement, and they stand in the same position as if they had employed a stranger. Bradford v. Kimberly, 3 Johns. Ch. 431. Bradley v. Chamberlin, 16 Verm. 613. Our conclusion therefore is, that, with the exception of the charge of $78.45, expended after he had received notice by tele [94] graph of the proposed abandonment of the scheme, the plaintiff is entitled to recover of the defendants five sixths of the amount of the expenses charged and allowed by the master, less the sum of |500 already paid by his associates and $100 chargeable as his proportion of the advance ; and also five sixths of the sum of $1800 allowed by the master for his services, with interest and costs. Decree accordingly.