Peter St. Martin & Co. v. Thrasher

The opinion of the court was delivered by Peck, J. The principal question in dispute before the referee was as to the mode of measuring the stone dressed by the plaintiffs under a written contract at a specified price per foot. The defendant insists that this question is conclusively settled in his favor by the award of one Hale, to. whom he claims the question was submitted for final decision. The plaintiffs claim that St. Miartin never agreed to submit the question to Hale, for decision, nor consented to such submission ; aud the referee so finds the fact; unless by his relation as partner he is in law bound by the agreement made by his co-partner [465] in bis presence under tbe circumstances stated. St. Martin, as the referee finds, being a Frenchman and understanding English very imperfectly, and not understanding that his partner agreed to submit the question to Hale for decision, and supposing that Hale was only giving advice in the matter, is not, as matter of law, bound by reason of his presence ; notwithstanding tbe referee finds that he on that occasion participated to some extent in the conversation on the subject of the dispute. It is not, as claimed by defendants counsel, a mere mistake or want of knowledge as to the legal effect of a submission and award. The presence of St. Martin under such circumstances is only evidence of his assent to the agreement of his partner, but not conclusive. The referee having found the fact against the defendant we are bound by his findings. The question then is whether one partner by virtue of his relation as partner, has authority to bind his co-partners,by a submission of a co-partnership matter to arbitration, so as to make the award in pursuance of such agreement binding on the firm. We think that upon principle, no such power is implied from the co-partnership relation. The exigencies and convenience of business do not require a partner to possess such power. The following cases recognize this principle, and in some of them the point was directly involved and decided, although in others the partner, in making the submission, did not.make it in the name of the firm: Steele et al v. Salt, 11 Com. L. 50; Harrington v. Higham and others, 13 Barb. 660; Buchoz v. Grandjeau, 1 Mich.; Onion v. Robinson, 15 Vt. 510. Other cases to the same effect might be referred to. Elementary authorities lay down the same principle. It has been decided in this State that one partner has no authority by virtue of the relation of partner, to accept service on a writ for himself and partner. The reason seems to be quite as strong against the power of a partner to create a court and bind his co-partner by the decision ; since the very foundation of an award is the agreement of submission. The ease therefore must be decided on its merits unaffected by the award. The question then is, whether the referee erred in rejecting certain evidence offered by the defendant in relation to the mode of measuring the work; that is, as to the meaning of the words, “faceof the [466] worh,” in the written contract. The plaintiffs gave parol evidence tending to show that the meaning of the term, face of the worh ” would include all the cut and dressed surface described in the report and claimed by the plaintiffs as proper to be measured ; and the defendant gave evidence of the opposite character tending to show that the words only mean the perpendicular fronts of the wall. The referee found the meaning of these words as the plaintiff claimed. But the referee excluded evidence offered by the defendant as to what was said in the oral negotiations between the parties prior to the execution of the written contract, as to how the measurement should be made, or what face measurement meant. It is a general rule that when a contract is reduced to writing, all previous verbal declarations of the parties in the course of their negotiations become merged in the written contract, and the parties are bound only by the language of the written contract, so far as the construction of the contract affects their rights under it. In general the same rule applies where technical words or terms of art are used in the contract, as in other cases. In the latter case, however, if the words are peculiar to the art or trade to which the contract applies, it is competent to show by parol the sense in which the words are used and understood in that art or trade generally. When this is shown the words are to be taken in that sense, and thus the contract speaks for itself. But if from such evidence it appears that the words in question as generally used as applicable to the subject, apply indifferently to two or more things or objects, it is open to proof showing to which object or subject the contract in question applies ; as it does not contradict the sense in which the words are generally used as previously proved. Such is the case of Hart v. Hammett, 18 Vt. 127, so much relied on by the defendant’s counsel. That was a case of the sale of a quantity of oil, expressed in the written contract as “ winter strained lamp oil.” It was proved that these words as generally used in the oil trade, apply indifferently to winter strained sperm lamp oil, and to winter strained whale lamp oil, and that the latter is inferior to the former in quality. The defendant subsequent to the execution of the contract delivered winter strained whale lamp oil. In this state of the case parol evidence was held to be admissible to show that at the time the contract was [467] executed the defendant exhibited to the plaintiff a sample of the oil to be delivered, and informed him that it was not sperm oil. That was substantially a question of identity of the subject matter of the sale. The principle recognized in that case does not warrant the admission of the evidence in this case excluded by the referee. That evidence was properly excluded. The plaintiffs are, therefore, entitled to recover on the basis of the larger measurment. The only remaining question is whether the $25. for the use of tools should be allowed and deducted from the claim of the plaintiffs. ■The facts reported show clearly that in justice and equity it should be allowed. By the contract the plaintiffs were to furnish the tools to perform the work. The plaintiffs should account for the use of the tools furnished by the defendants, unless the objection that the defendants did not, until the commencement of the suit, intend to claim it, is a bar. Generally there can be no recovery for what was understood by the parties at the time as a gratuity; and so generally where the party making the claim so intended it. In this ease it appears satisfactorily that the expectation of the plaintiffs was that they were to account for the use of the tools ; for in their specification filed in the cause in court, they credit the $25. for such use of tools. It does not appear that the plaintiffs ever knew or supposed that the defendants had any other intent or expectation until it came oiit on trial before the referee. ' So that it cannot be said that the plaintiffs used the tools on the faith that it was to be a gratuity. We do not regard a specification filed in court as so far conclusive against the party filing it, as to be beyond the power of the court to allow it to be amended in case of a mistake. A state tff facts might appear before a referee which would justify the court in not holding the party strictly to the specification in case of mistake, although no amendment of the specification had been previously made. In this case there was no mistake on the part of the plaintiffs in relation to the specification as to this item, except they were not aware of the intention of the defendant not to charge it. Whatever force there is to the objection to this item is purely technical and against the equity and justice of the case. Whether we look at this item as an abatement of so much of the plaintiffs’ claim for not furnishing tools as [468] they agreed, or as a counter claim on the part of the defendant, as the plaintiffs used the tools expecting to account for the use, they should be held to the credit they have given in their specification. The $5,00. item is not insisted on by the defendant’s counsel. Judgment reversed and judgment for the plaintiffs for the larger sum, deducting the $25.