Douglas v. Chapin

Hinman, J. The defendant in this case moves in arrest for the insufficiency of the declaration, and there is also a motion for a new trial, founded on exceptions to the charge of the court, and to the rulings of the court in respect to the admission of evidence; and also on the ground that the verdict is manifestly against the evidence in the case. The motion in arrest is founded upon the supposition that the suit is brought against a copartnership by the copartnership name, without naming with sufficient certainty the parties who compose the copartnership; and also on the ground that it appears upon the face of the writ and declaration, that there was a joint contractor with the defendant, and as the name of such joint contractor is omitted, the declaration is fatally defective. We think however that there is no foundation in fact on which to base either of these claims. In the writ the officer is commanded to attach the goods or estate of “ M. W. Chapin & Co., a firm doing business in said Hartford, and consisting of Merrick W. Chapin, — 90 — and them summon, &c.” And in the original it appears that a blank was left after the name of the defendant, Chapin, of sufficient space in which to insert other names, had there been any other joint contractors with him. We mention this circumstance, because counsel for the defendant rely upon it as having some influence in giving a construction to the words quoted. But as the meaning of these words appears to us to be clear and unambiguous, we can not lay any stress upon this fact. The contract out of which the plaintiff’s claim originated, was signed on the part of the defendant, “ M. W. Chapin & Co.,” and at the time the writ and declaration issued, the plaintiff might have been in doubt whether or not there were other members of the firm, as it is called, and left the blank for the purpose of inserting other names, if it should be found that there were such members; as it would be competent to do under our statute in respect to bringing suits for or against private copartnerships. But it is not now pretended that any other person than the defendant, Chapin, was interested with him in the subject-matter of this suit, unless, indeed, the contrary appears upon the face of the writ and declaration. But the words of the writ are very explicit. They say, as plainly as- it is possible to say, that the firm of M. W. Chapin & Co. consists of Merrick W. Chapin, and the process is served on him alone. He answers to it, and takes no exception by plea in abatement for the want of proper parties, but relies solely upon the fact that he is described as a firm, and is spoken of in the process in the plural, rather than with strict grammatical accuracy. We are satisfied that the declaration is well enough. The claim of the plaintiff was for the work and labor of her husband under a contract with the defendant, and for moneys expended by him for board, while he was in the service of the defendant in California, or was there ready to perform such services according to the terms of the contract, but was prevented from so doing in consequence of the neglect of the defendant to furnish the stipulated employment. By the contract the deceased agreed to go to California, and take charge of the engine department of one of the defend — 91 — ant’s steamboats, furnishing all his help for so doing, for which service he was to be paid a monthly salary, and was to be boarded on board the steamer. The plaintiff was permitted to testify that her husband went to California for this purpose, and took with him Andrew W. Chase, a competent mechanic and engineer, to assist him; and it is said that the evidence as to Chase going to California is irrelevant, and its tendency was to mislead. It appears to us, however, that it tended to show that the deceased performed his contract. The contract, upon its face, contemplated that assistance would be needed. The deceased could not personally perform all the duties which were required of him under the contract; and it seems clear that it was proper for him to take on with him such assistants as he would need. It is said that he might have procured such assistants in California. This may be so, but it proves nothing. We think his executrix had a right to show that he was prepared to discharge all the duties required of him; and where he procured his assistants is of no importance; he had a right to get them where he pleased, but the fact that he had all such assistants as he might require is important, and being so, the plaintiff had a right to show it. The court left it to the jury to say, upon the evidence, whether the deceased conducted reasonably in taking out said Chase with him, and whether, upon all the facts in the case, anything, and how much, was to be recovered for his services. This is objected to on the ground that as the contract was for a stipulated sum per month, for certain specified services, he furnishing his own assistants, it was not proper to submit to the jury whether he was entitled to compensation for any particular part or portion of those services. If by this is meant that it would be improper to submit to the jury whether the plaintiff was entitled to anything more than the stipulated compensation for the whole service, no doubt the claim would be well founded, if there was any foundation in fact for it to rest upon. But we suppose nothing more was meant by this than that if they should find the plaintiff to be entitled to anything for his whole service under the contract, — 92 — including, as it of course would include, the service of Chase, they would find upon the whole evidence what she was entitled to recover, and as a part of the service for which she might be entitled to recover was rendered by Chase, they would say whether anything, and how much, she would be entitled to for the service rendered by him. We do not see, therefore, that this part of the charge is open to objection on the part of the defendant. The book of the deceased, containing entries in his handwriting, in respect to his transactions under, this contract, was received in evidence, though objected to by the defendant. But the statute passed in 1850, (Statutes, ed. 1854, p. 94,) provides that in.suits by or against the representatives of deceased persons, the entries and written memoranda of the deceased, relevant to the matters in issue, may be received as evidence, subject, in regard to weight and credit,’ to the rules under which the testimony of parties and other interested evidence is received. We do not see how, under this statute, the entries relevant to the performance of the contract on the part of the deceased could have been excluded. When the deceased arrived at San Francisco, the defendant’s boats were up the river, opposite Sacramento; and he thereupon left San Francisco, and said to the witness “ that he was going up the river to Sacramento, to go on board the boats.” This is objected to as the declaration of the party in his own favor. But it was manifestly a part of the res gestee, and as such admissible in evidence. The deceased was a party to certain proceedings in California, under which one of the defendant’s boats was sold, and the proceeds applied to the payment of the debts of the parties for whose benefit the boat was sold; and the plaintiff, for the purpose of showing that the proceeds which came to her, were less than the defendant claimed them to be, and what they really were, and how much should be allowed the defendant therefor, was allowed to prove by the agent -whom the deceased authorized to receive said proceeds, that, by virtue of a written order from the deceased on the lawyer — 93 — having charge of the case, he settled with the lawyer, and received a certain amount, which he forwarded. We see no objection to this ruling. The order was probably in the hands of the lawyer to whom it was addressed. And the agent to receive the money was not appointed by a power of attorney. So far as the case shows we do not see, therefore, how his agency could be shown in any other way than by parol. It was a mere question as to how much of the defendant’s debt had been paid, and the agent who received it would seem to be a very proper witness to prove his agency, and what he received under it. The request to charge the jury that the action co Id not be sustained against the defendant, alone, is founded upon the idea that the writ and declaration, and the defendant’s signature to the contract, and the contract itself, show that there was some other person or persons interested with the defendant in the transaction. This claim has, we think, been sufficiently answered in what has been said under the motion in arrest. If the objection does not appear upon the face of the declaration, as we have said it does not, it was then for the defendant to plead in abatement the nonjoinder of parties who ought to have been joined; and not having done so, he can not take any advantage of any such fact, even if it exists, of which we can know nothing. We think the charge of the court, in respect to the money paid by the deceased for his and his assistant’s board, was correct. By the contract, the defendant agreed to pay a stipulated sum per month, “ and board, on board said steamer, for the services performed as heretofore expressed.” Under this language, the defendant takes no exception to the charge in respect to the board of the deceased, but claims that the charge was wrong in respect to the board of the assistant-But as the contract contemplated that the service was to be performed by the aid of such assistants as should be necessary, and provided that the defendant should furnish such assistants, we think when the contract provided that, in addition to the stipulated compensation, he was to be furnished with “board on board the steamer,” it was meant that he — 94 — should not only be furnished his own board, but board also for such assistants as might be necessary to aid him in performing the service. And in the language of the court below, we think, “that if the defendant or his agents neglected to provide him, or his assistant, when reasonably employed by him, with board, either when in actual employment on board the boats, or when so waiting employment thereon, and he was compelled to expend money for their board, the plaintiff was entitled to recover the amount actually and reasonably expended therefor.” The defendant claims that the court below was wrong in charging the jury that the contract bound the defendant to pay for the service at the end of each month, and that the sums for service, being due at the end of each month, if they found for the plaintiff, they might compute the interest on the„ amount found due for each month’s labor, from the end of each month. The words of the contract on this part of the case are, “For the faithful performance of the aforesaid duties, as specified, we, the said M. W. Chapin & Co., on the second part, agree to pay the said Henry Douglas, of the first part, the sum of two hundred and fifty dollars per month,” and then, at the end of the contract, this language is used: “ It is expected the services will be paid at the end of each month.” We do not see how the stipulation for monthly payments for the services could be made any clearer than this language makes it. The contract contemplated a years’ service, determinable, however, at the end of six months, at the pleasure of either party, on his giving the other party one month’s notice before the expiration of said six months. And the steamers, on board which it was contemplated the service would be performed, were both sold under legal process, and passed into other hands, before the expiration of six months, and the deceased, at intervals, for short periods, was, from time to time, employed on board one of the steamers for the new owners. And the defendant claimed that the deceased was not entitled to anything on the contract, for work and labor after the boats were sold and he entered into the new em — 95 — ployment. But it was also a part of the case, and, under the charge of the court, the jury must have found, that, after the boats were attached, he remained in California, at the request of the defendant, awaiting the arrival of the master of one of the boats, ready and willing to be set at work; and the defendant, being requested to release him from said contract, or to permit him to come home, declined to do so, and desired him to await the arrival of the said master; and while so waiting, he, without abandoning the contract, or interfering with his readiness to perform it, to procure the means to sustain himself there, entered into this new employment, and whatever was earned by him therein was allowed to the defendant as part payment under the contract. Under such circumstances, we think it quite obvious that the rule adopted by the court below was the only one- which would do justice to the parties. The point that there was no proof that the contract was terminated, and therefore there could be no recovery on the common counts, was not made in the superior court, and can not therefore be considered now. On the contrary, the motion states that it was not claimed that said Douglas had forfeited his rights under said contract by reason of a failure to give notice, or because he left California before the six months expired. On the motion for a new trial on the ground that the verdict is against the evidence in the cause, as every presumption is in favor of the verdict of the jury, it is of course incumbent upon the defendant to show that it is clearly and manifestly contrary to the evidence, or the court will not interfere with it. No doubt there is ground to apprehend that the damages assessed by the jury are greater than we should have given, but this would depend upon how much the deceased expended in California to maintain himself and his assistant there, while waiting for employment in the business contemplated by the contract, as well as how much he received from his employment by other parties while he was in this situation. In looking at the evidence, we find nothing that will enable us to state the account with that — 96 — precision and accuracy which we think ought to be done, in order to show that the jury manifestly erred in rendering too large a verdict. As, therefore, we can not determine, with any precision, whether the verdict is too large, and, if excessive, to what extent, we do not feel authorized to grant a new trial on this ground. On the whole ease therefore we advise the superior court not to grant a new trial. In this opinion the other judges concurred. New trial not advised.