Hills v. Bailey

The opinion of the court was delivered, at the circuit session in September, by Bennett, J. The plaintiff and the three defendants had formed a copartnership, for the purpose of carrying on the marble business, and each to share one-quarter in the avails. Each partner was bound to furnish one-quarter of the money necessary to be advanced [551] in carrying on the business, though it was expected that the defendants would, in point of fact, advance the whole of the money, and the plaintiff secured each of the defendants for the money they should advance for him, by mortgaging his portion of the real estate which they had bought. The plaintiff was to be the agent and acting partner, and the object of this suit is, to recover for the personal services of the plaintiff, in superintending the business of the firm. The result of this suit must depend upon the question, whether the plaintiff’s compensation was, in point of fact, to be paid by the firm, or by the three defendants. If by the firm, this action cannot be sustained, — but, if the undertaking was a personal one, of the three defendants, then the action well lies. This must depend upon the construction of the contract, bearing date the 20th of December, 1841, made between the plaintiff and Thomas J. Bailey, in behalf of himself and the two other defendants. This written agreement does not constitute the articles of copartnership, but proceeds upon the basis that one had been formed, and the object of this agreement is, to provide for the agency of the plaintiff in carrying on the business of the firm, and to stipulate as to what shall be his compensation. The language of the contract is, “ and in considera- “ tion of the services so rendered, I, the said Thomas, in my said ca- “ pacity,” (that is, for himself and the other two defendants,) “ agree “ to pay the said Bock five hundred dollars per annum; and in all “ cases where it is necessary for said Bock to travel or be trans- “ ported or conveyed from or to the said farm, or any other place, “ on business relating to the above named concern, his expenses “ will be allowed him in addition.” Though the language used by Bailey is indicative of a personal undertaking, yet it is to be understood and construed with relation to the subject matter, the situation of the parties, and the whole should be taken together. The compensation lo be paid to the plaintiff, is for services rendered for the firm, and is prima facie a charge against the firm, — and it would be unnatural-to provide that the three defendants should pay the plaintiff five hundred dollars annually, for three-fourths of his services, which, if they are personally liable, would be the result. Besides, the contract has no reference to a splitting of his compensation. The language is, “in consideration of the services so [552] “ rendered,” &c. The closing j>art of the contract, which provides that the travelling expenses of the plaintiff will be allowed him in addition, goes far to give a construction to what precedes it. It can hardly be urged that the travelling expenses of the plaintiff' should be a personal charge against the three defendants. Besides,, it seems that the plaintiff has himself given, by implication, a construction to this contract. In his account with the company, he has charged them with the first year’s salary, at $500, and has carried it into his account in making out his balance. We think, then, that this agreement between the plaintiff, who was to become the active agent of the firm, and the other members, was only an agreement fixing the compensation to be allowed the plaintiff, by the firm, and that the language, “I will pay,” &c., is to be understood only as importing an agreement by the- defendants that $500 should be paid the agent annually, out of the effects-of the concern. The judgment of the county court is therefore affirmed.