Tupper v. Rider

The opinion of the court was delivered by Eowell, J. Tiie defendants make but two questions. One is, that the settlement of April 1, 1886, is not binding on Mrs. Eider in respect of the item of clerk hire, and the other is in respect of the orators’ accountability for the assets of the store. We regard that settlement as clearly binding on Eider himself in the respect named. There was no mistake of fact touch [74] ing that item. Rider claimed that he employed the clerk for the whole time by the consent of the orators, while the orators claimed that he hired him by their consent only while the soda-water season lasted, and they credited Rider with $12, one-half the clerk hire for that time, and insisted on settling in that way if at all, to which Rider finally reluctantly consented, in order that he might continue in the business. This was a compromise by waiver of his claim in respect of that item, and he is bound by it. But it is said that if he is bound, Mrs. Rider is not, as the item related to a matter not within the scope of the contract, and that the mortgage, which it is conceded is of her sole and separate property, is conditioned only for the performance of the contract by her husband. If the matter is ontside the contract, then it is outside this accounting, and therefore can avail her nothing. But the contract is one by which her husband was-constituted the agent of the orators to carry on and conduct for them the business of their drug-store; and although there is no-clause in the contract that expressly authorized Rider to hire a clerk at any expense to the orators, yet the services of a clerk so pertained to the business and was so incident to it, as to bring-the hiring of one by the express consent of the orators fairly within the contract, and to make the expense thereof a px’oper matter of settlement as belonging to tlxe busixxess; and hence Mrs. Rider is bound by her husband’s settlement equally with him. The orators agreed to pay Mr. Rider the whole sum that should be of the assets of the business at the termination of the agency, whether in cash, goods, furniture, or fixtxxres, less $1,500, and half the net profits or six per cent in lieu thereof. The agency terminated on Jan. 24, 1887; hence the accounting in respect of assets must be as of that date, and the orators can be allowed nothing for their administration of the business after that. By the contract, Rider agreed that at the termination of the agency he would pay the orators $1,500, and the interest thereon, or return- to them a stock of equal value with the stock, fur [75] niture, and fixtures on hand at the time the contract was made and the question is, what shall be the basis of accounting in respect of the value of the assets. The defendants claim that it should be the value of the stock at the time of the termination of the agency, as shown by the inventories referred to by the master. But there is nothing to show that the parties ever agreed upon this or any other mode of fixing the value, and under the finding of the master the inventories are not determinative of value. It does not appear that the value of the original stock was ever fixed, nor how the value of the stock was to be determined on final accounting, in the absence of all which it must be taken that the cash value was to be the basis for all purposes of the contract; and on this basis the value of the stock is fairly fixed by the report, as nothing appears to show it worth more than it sold for. If the defendants claimed it was worth more, they should have shown it. As to the orators’ liability for the unpaid bills incurred by Rider, we do not deem the ca,se ripe for determining, and the orators ask to have the' bill dismissed without prejudice in this behalf, and it will be so ordered. The orators are entitled to a decree for the amount found due on the Rich mortgage, as to which there is no dispute, and for the balance of $501.76, found due on the other mortgage on April 1, 1887, less $69.52, which is the difference between the amount realized by the orators on sales from Jan. 24 to April 1, 1887, and the amount of their disbursements during the same time for accretions to the stock. Decree reversed and cause remanded, with mandate.