Bull v. Schuberth

Mason, J., delivered the opinion of the court. This is an action of assumpsit, instituted by the appellee against the appellant, under the following circumstances: Ole B. Bull, the celebrated fiddler, or (in his own more fashionable and elegant parlance,) “Knight, violin virtuose,” agreed with — 54 — Julius Schuberth, a music dealer of Hamburgh, in Germany, to make a musical tour through the United States, and accordingly executed a written agreement for that purpose, on the 10th of October 1843. That agreement is in the following words: “Contract between Ole Bull, knight, violin virtuose, Norwegian and Julius Schuberth, music dealer of Hamburgh. Ole Bull, knight, and Mr. Julius Schuberth, have agreed to an artistical trip to America, and agree as follows: “1st. The starting place shall be Hamburgh, on the 20th October, via. Amsterdam and Liverpool, to New York. It is at present determined, that they shall remain in America until the end of April 1844, yet the sooner or later return, shall depend upon circumstances, that is to say, if it is agreeable to the interests of both parties. “2nd. Mr. J. Schuberth binds himself to arrange the concerts, to direct the same if necessary, and to undertake and attend to the concert accounts. They shall take place immediately after the concerts, for which he is to receive one-third of the nett proceeds from Mr. Ole Bull, knight, (and if they should in any one concert exceed four thousand francs, he shall receive one-fourth of the nett proceeds.) “3rd. Mr. Ole Bull undertakes and binds himself, to play at the concerts, arranged by J. Schuberth, and a vacation shall only then take place, when it is agreeable to the interests of both parties. “4th. Each shall defray his own traveling expenses.” The plaintiff’s declaration, filed in the cause, consists of the common counts and a special count, by which it appears, that the suit was brought to recover under the agreement, which purports to be set out in the declaration, one-third of the nett proceeds of the concerts, which took place in Baltimore and Washington. To the declaration of the plaintiff, the defendant pleaded the general issue. The plaintiff’s evidence, consists of the written agreement and the testimony of a number of witnesses, which is fully detailed in the record. — 55 — We shall proceed to consider as briefly as we can, the various questions which are presented by the several exceptions,, taken to the ruling of the court below, in their natural order, and not in the irregular manner in which they appear to have been raised in the county court. The first proposition advanced by the defendant, was, that the contract as proven established a partnership, ■which precludes an action at law between the parties. It is conceded, that the fact of the existence or non-existence of a partnership, as between the partners themselves, must be gathered from the intention of the parties, and that the court, in arriving at that intention, must form their conclusions from deductions drawn by analogy from principles of law, applied to- the facts and circumstances developed in the case. Kerr vs. Potter, 6 Gill, 404. It is true, that there are certain expressions employed in the contract, which, standing alone, might indicate a purpose on the part of the contracting parties, to regard this adventure in the light of a partnership transaction. But this inference is rebutted by certain other facts, which conclusively settle, in our judgment, that the- parties did not design that the contract should have such an interpretation or effect. In the first place, by the terms of the agreement itself, it is provided, that “Schuberth was to receive one-third of the nett proceeds from Mr. Bull.” Now if this was a partnership, each party would have an equal right to claim his respective share of the profits, independent of the other. Instead of this, the relation of principal and agent, is clearly recognised, by requiring the plaintiff to look to Bull, for remuneration for his services. In addition to-this,-Schuberth, before this suit was brought, and before he could have had any motive in creating such an impression, expressly styles himself, in his correspondence with Ritchings, the agent of Bull. Again, Bull, in conversation with the witness, stated that he “had dismissed Schuberth, and had employed another agent,” which manifestly indicated, that he regarded Schuberth only as an agent or servant, and as such, could dismiss him at any time. — 56 — The mere fact that the remuneration of the plaintiff, was to depend upon the contingent profits of the concerts, does not of itself, create a partnership. This is not, by any means, an uncommon mode of paying agents and servants, and it is not regarded in the books as necessarily creating a partnership relation between the parties, in the absence of other circumstances, indicating such an intention. The second prayer presented by the first exception is, “that the plaintiff has offered no evidence, upon which to maintain any count of his declaration, there being a variance between the contract declared on, and the contract as offered in evidence.” It has been contended by the plaintiff’s counsel, that the question of variance, between the contract proved and the one set out in the special count, is not clearly and distinctly enough presented by the prayer, as required by the act of 1825, chap. 117, inasmuch as the particular variance is not specially defined. The contract between the parties being in writing, its provisions could only be established by the production of the agreement itself, or proof of its contents in case of its loss or destruction. When, therefore, a party raises the question of variance, in a case like the present, it necessarily directs the mind of the court to a comparison between the contract as stated in the declaration, and the written agreement offered in proof to support it. This is all the act of 1825 had in view. In this case there is no room to conjecture, as to what the variance consists. The question is distinctly presented by the prayer, and we have no difficulty in discovering a manifest and fatal variance. The special count in purporting to set out the contract, alleges that “said defendant undertook to pay said plaintiff one-third of the nett proceeds of'all said concerts, and in all cases where any concert’s nett proceeds aforesaid should not amount to or exceed four thousand francs, then the payment aforesaid to the plaintiff should be only one-fourth of the nett proceeds,” &c. On the other hand the agieement offered in evidence shews the contract to be, in this particu — 57 — lar, the very converse of that set out in the declaration. It is in these words: “and if this (the nett proceeds) should in any one concert exceed four thousand francs, he shall receive one-fourth,” &c. If the prayer of the defendant had been confined to the special count, this court would have found no difficulty in pronouncing its rejection by the court below, erroneous. But the prayer is general, and asks the court to say that there is no evidence “ to maintain any count in the declaration.” The prayer as thus presented, we think the court were right in rejecting. While there was no evidence to support the special count, owing to the variance, we think, under the circumstances of this case, there was evidence which was properly permitted to go to the jury, in support of the common counts. The right of a party to abandon a special contract and resort to an implied agreement, and to recover under the common counts, in a case like the present, depends upon this rule, which is, that if the special agreement has been put an end to by the defendant, or the performance of it on the part of the plaintiff prevented by some act of the defendant; in all such cases the plaintiff may resort to, and recover under the common counts, for whatever may be due for so much of the contract as may have been performed. 7 Harr, and John., 133. In the'case we are now reviewing the special agreement has been abandoned, and terminated, and its performance prevented by the defendant. Bull rejects the services of Schuberth, and actually dismisses him, without any default on his part, from his employment, before the contract has been completed. The right, therefore, of the plaintiff to recover the value of any services which he could prove he had rendered by virtue of the agreement, and before he had been dismissed by the defendant, is clear under the common counts. If the services were rendered, and the further requirements of the contract were omitted by Schuberth only, because of the misconduct of the defendant, he should, nevertheless, be entitled to recover for what he had done. There is no evidence in the case which would have war — 58 — ranted the granting of the third and fourth prayers of the defendant, which related to the forfeiture of the $>150, and the right of the defendant to dismiss the plaintiff in consequence thereof; but, on the contrary, all the evidence on that point tends to show, that it was Bull’s own neglect or mistake, that led to the breach of his first Baltimore engagement, and to the imposition of the penalty. We think, therefore, these prayers were rightly rejected by the county court. The second and third exceptions relate to the testimony of Hewitt, which referred to the Washington concerts. While it is quite clear to the mind of the court, that the verdict in this cause embraces the profits of the concerts in Washington, which, manifestly, it ought not to have done under the common counts, upon which it only could have been based, yet the exceptions now before us do not so present the question, as to enable this court to correct the error. Schuberth rendered to the defendant no services at Washington, and therefore he could have properly offered no evidence under the common counts, respecting the profits of those concerts which he might have been entitled to under his agreement. The evidence, however, relating to those profits was introduced without objection, and it would now be too late to attempt to exclude it. Those two exceptions relate to the propriety of two isolated independent questions propounded to the witness, for the purpose of enabling him to fix a certain date. He was asked whether he recollected that an article relating to said concerts appeared in the National Intelligencer, shortly after the concert was given, and whether the article which was produced' and shown to the witness, was the same to which he referred? The court, in our judgment, was right in permitting these, questions to be asked, if intended to refresh the. memory of the witness as to the date of the concert, which was the event to be established. The record does not, however, disclose distinctly for what purpose this evidence was offered, and we think the court was right in not sustaining the defendant’s objection to the testimony, because, if for no other reasons the, objection- came before the paper had been — 59 — identified by the witness, or he had an opportunity to do so. 1 Greenleaf’s Evidence, secs. 436, 437. See, also, 6 Gill fy John., 481. We concur also with the court below in the propriety of refusing to admit the declarations and statements of the defendant, to be given in evidence by the witness Willig, who also was called to show the time when the concerts took place in Washington. The witness was not called to detail, nor was he asked by the plaintiff’s counsel to state any part of the conversation which took place, further than that which related to, and tended to show the time of the Washington concerts. It is true, as a general rule, if you offer a part of the declarations and statements of a party against himself, he would have a right to insist, that all he said at the time might go to the jury. But this rule does not apply in the present instance. The plaintiff’s purpose was to arrive at the time of a particular fact, and in order to do so, he introduced the conversation of the defendant, so far as it related to that fact, and for no other purpose. Of course all the defendant said upon that point ought to be heard, but it would not be proper to introduce his previous and subsequent conversation and statements with different persons, touching other irrelevant and distinct matters, under the pretext that they were necessary to explain what he had said upon another subject. Under the fifth and last exception, most of the questions which we have already disposed of, under previous exceptions, seem to have been presented afresh. We shall confine ourselves, in the further review of this exception, to the points not already considered. The prayer that we shall first dispose of, relates to the effect of the supposed new agreement entered into between the parties. If there was a new agreement substituted in this case, in place of the original one, it was as much abandoned and terminated by the defendant as was the first agreement, which left the plaintiff equally free to resort to the common counts, to enforce an implied contract for compensation for whatever services he may have rendered' prior to «the abandonment of the special contract by the de — 60 — fendant. We think, therefore, this prayer was also properly rejected. The questions embraced in the ninth and eleventh prayers, are the only remaining points to be disposed of, out of the many which were raised by the appellant’s counsel. Those questions have reference to the necessity of the plaintiff’s showing that he tendered ready to perform his portion of the .contract, and that he was prevented from doing so by Bull, or by his orders and directions. This question could only relate to and affect the special count, and as that count is entirely out of view in the present aspect of the case, we feel relieved from the necessity of intimating any opinion upon the prayers in question. But the prayer was properly rejected, because it was too general in its terms, for it made the tender of readiness necessary to support all the counts in the declaration, instead of confining it to the special count We would have no difficulty, however, in deciding that in all cases where the defendant had openly dismissed the plaintiff, and repudiated all connection and intercourse with him, and totally disregarded the contract, there would be no necessity on the part of the plaintiff to make any tender of readiness to perform his portion of the contract, provided he himself had been guilty of no previous default or misconduct. From the pleadings and proof in this cause, we shall be .obliged to pronounce the granting of the appellee’s prayer by the county court erroneous, and on that account must reverse the judgment. Under the peculiar character of this cause, the portion of the proceeds of the several concerts at Baltimore and Washington, which, under the contract, were to belong to Schuberth, could only be recovered under the special count in the declaration, as damages for the breach of the contract. But owing to the variance between the contract declared upon, and the one offered in evidence, as we have already shown, there could be no recovery upon the special count. There could clearly be no recovery of this demand upon a general indebitatus assumpsit, for the reasons which we have already — 61 — given, namely, because the services to be performed by the plaintiff, were in fact not rendered, nor the work and labor done, which were necessary to constitute such an executed contract, as would entitle the plaintiff to recover upon his common counts. 5 Harr. 4r John., 47. 6 Harr. §- John., 38. The prayer granted by the court affirms, however, the very-converse of this proposition. The court say, that, if before the bringing of the suit the proceeds of the concerts in Baltimore and Washington were paid to Bull, then Schuberth was entitled to recover a proportionate share thereof from Bull, as money had and received to his use. In any aspect of this cause, we repeat, this prayer was incorrect. The proceeds of the concerts could not be recovered under the special count, because the alleged agreement was not proved. Neither could any part of the proceeds of the Washington concerts be recovered under the common counts, because no services were rendered nor acts done by the plaintiff, in relation to those concerts, upon which could be based an implied contract or promise on the part of the defendant to pay him any thing. We think we have now disposed of all the questions arising in this case, which it is important for us to settle. We affirm the ruling of the county court in relation to the four prayers of the defendant, which are embraced in the first exception; also upon the second, third and fourth exceptions. We also sanction the judgment of the court in rejecting all the defendant’s prayers as presented by the fifth exception, but reverse the count for error in granting the appellee or plaintiff’s prayer, embraced in the same exception. There appearing to be no exceptions taken to the instructions given by the court in lieu of those asked for by the defendant, we are not required to express any opinion upon those points. Judgment reversed and procedendo awarded.