Lincoln v. Orthwein

McCORMICK, Circuit Judge, after stating the case as above, delivered the opinion of the court. The first and the second of the errors assigned are substantially one, to the effect that the court erred in directing the jury to find a verdict for the .defendants. The other was not argued, and will not be considered. The contract which is the basis of this action provides that one of the parties thereto shall furnish to the other designated employment, and that the other shall furnish designated services at stipulated prices therefor; the mutual transactions contemplated by it to begin on the ist of October, 1898, and to continue for a period of 12 months thereafter. In the nature of the subject of the contract and of the terms thereof, if the plaintiff, who was the sole contracting party on his part, had died within-the 12 months next after the ist of October, 1898, such death would have terminated the contract. The party of the other part thereto being a trading partnership consisting of three individual members, the death of one of the members might or might not terminate the contract, because such death might or might not actually dissolve the partnership. While it is true, as a general rule, that the death of one of the partners dissolves the partnership by operation of law, it is competent for partners to provide against that contingency by their previous agreement, and a partner may, by his will, provide that the partnership shall continue notwithstanding his death, and if this is consented to by the surviving partners it becomes obligatory, just as though if the [884] testator, being a sole trader, had provided for the continuance of his trade by the executor after his death. Burwell v. Mandeville’s Executor, 2 How. 560-576, 11 L. Ed. 378. The will of Chas. F. Orthwein appointed his two sons, Wm. J. Orthwein and Charles C. Orthwein (who were the other members of the firm of Chas. F. Orthwein & Sons), independent executors of his will, without bond, and with the fullest powers, and provided that: “To facilitate the advantageous winding up of our partnership affairs, I give my executors authority and power to leave the whole of my shares or interest in the partnership of Chas. P. Orthwein & Sons in said business until the first day of July following their taking charge of my estate. My said interest during said period of its continuance in said firm to share in the profits and losses of the business as theretofore.” This will is dated December 22, 1898, and was duly probated January 3, 1899. On the part of the partnership the contract was signed: “Chas. F. Orthwein & Sons. Wm. H. Ross, Manager Steamship Department.” Mr. Ross testified on the trial that he attended to the making of the contract on behalf of Orthwein & Sons; that he was in consultation with Wm. J. Orthwein, and no one else; that, though it bore date September 30th, it was not signed on behalf of the partnership until he had consulted the various lines of steamers. He could not fix with certainty the date when it was signed, but thought it was about Christmas, or the 1st of January after its date. He testifies that Wm. J. Orthwein was in New Orleans, where the office of the manager of the steamship business of Chas. F. Orthwein & Sons was located, in February after the death of Mr. Chas. F. Orthwein. It is not disputed that the work went on under the contract in question continuously from the date of the death (in December) of Chas. F. Orthwein until the 26th day of May following. There is proof tending to show that both of the surviving partners accepted as executors named in the will of their deceased father, who had been the senior partner, and that they did, according to the terms of the will, continue the business until the 1st of July, 1899. “Wm. J. Orthwein, as one of the members of the late firm of Chas. F. Orthwein & Sons, and as one of the liquidators of said late firm-, and as one of the executors of the estate of Chas. F. Orthwein, deceased,” in answer to the plaintiff’s suit, denies all and singular the allegations thereof, “except in so far as may be hereinafter specially admitted.” The answer then “admits the making of the certain contract between the said late firm of Chas. F. Orthwein & Sons and the plaintiff, of which a copy is attached to and filed with the original petition herein, and respondent admits the termination of said contract by the said Chas. F. Orthwein & Sons on the 26th day of May, 1899.” This termination of the contract by Chas. F. Orthwein & Sons took place after the expiration of five months from the date of the death of Chas. F. Orthwein, and within five weeks of the date when it would have been terminated by the termination of the partnership under the terms of the testator’s will. The answer does not claim that the contract with the plaintiff was terminated by or on account of the death of Chas. F. Orthwein, but it denies that the plaintiff [885] had performed all of the work and duty required of him under the contract up to the 26th day of May; and avers that he did not perform the work required of him under the same in a first-class manner, and did not give_ his personal supervision to the work and duties required of him thereunder. Nor were the cargoes stowed by him stowed, dunnaged, and separated to the satisfaction of Chas. F. Orthwein & Sons, captains of steamers, and surveyors, and that Chas. F. Orthwein & Sons rightfully terminated the contract. The contract provided that the work to be done by the plaintiff should be done in a first-class manner, under the personal supervision of the plaintiff, and with as quick dispatch as could be carried out by any other stevedore of the port of New Orleans; the cargoes to be stowed, dunnaged, and separated to the satisfaction of Chas. F. Orthwein & Sons, captains of steamers, and surveyors. It was conceded on the hearing before us by the able counsel who represented the defendants in error, .that the provision that the cargoes “should be stowed, dunnaged, and separated to the satisfaction of Chas. F. Orthwein & Sons, captains of steamers, and surveyors,” meant in such a manner that the parties named ought, as reasonable men, to be satisfied therewith. This concession was required, not only by sound reason, but by recognized authority. Hawkins v. Graham, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422. Whether work done on the part of the plaintiff under the contract had been done in a first-class manner, under his personal supervision, and with the required dispatch, and the cargoes stowed, dunnaged, and separated in such a manner as should have satisfied the other party, captains of steamers and surveyors, presented issues of fact to be found by the jury. On these issues there was substantial conflict in the great volume of the proof offered and admitted on the trial. Whether, therefore, Chas. F. Orthwein & Sons did rightfully terminate the contract on May 26, 1899, must depend on the findings of the jury on the issues of fact just stated. They had submitted their offers to the various stevedores in the port of New Orleans. The plaintiff had made the detailed bid set out in the contract, based on the continuance of the relations for a period of 12 months, which period of continuance had, in the nature of such things, affected the price favorably to the defendant partnership. This the partnership had accepted and received the benefit of, not only up to the death of the deceased partner, but for five months thereafter. And the survivors and executors of the will of the deceased, having so acted after the death of their testator, could not capriciously terminate the contract before the 1st day of July, the limit imposed by the will, any more than the partnership could have done so before the expiration of the 12 months had the death not occurred. If the jury find from the proof that the contract was rightfully terminated on May 26th, then they need not inquire further, as in that case the plaintiff would have no right to recover. If, on the other hand, the jury find that it was not rightfully terminated, they should be charged to inquire further, and determine from the whole proof whether the plaintiff has been damaged by the wrongful termination, limiting the inquiry to the 1st of July, 1899, and find the extent of that damage, if any is shown to have resulted. [886] The answer of the respondent specially denies that the plaintiff has been deprived of and prevented from earning the sums of money averred in his petition, and specially denies that the profits to plaintiff on work properly performed under the contract, if it had not been terminated, would have equaled the rate and figures stated by the plaintiff; and avers that the rate and amount of profits which the plaintiff claims he would have made for work under the contract, if it had not been' terminated, are grossly exaggerated and overstated. This also presents an issue of fact, which, however difficult it may be for the jury to determine from such proof as the subject permits, is one which should be submitted to them. The defendant insists that the plaintiff cannot know, and hence cannot prove, that he would have made any profit on the stevedore work, loading and discharging the vessels consigned to or chartered by the respondents, and loaded or discharged at the port of New Orleans, after the 26th of May, and prior to the 1st of July. Here it should be borne in mind that the difficulty of making direct proof springs, like the plaintiff’s right to recover the damages, out of the wrongful act of the respondents, who should not be suffered to reap advantage from their own wrong by requiring that kind of proof which their wrongful action has rendered it impossible or difficult for the plaintiff to obtain, while it is fully and easily at their command. On this issue the plaintiff testified: “I took the net registered tonnage from the time I commenced the contract until it was broken. That amounted to so many tons — I cannot remember — > and my profits for that length of time was so much. I figured out that I made so much on the registered tonnage of these ships, and from that time on until the contract should have run out I kept a record of the vessels that came here consigned to them that I should have had, and I figured them on the same basis, as X say, of that amount on the same vessel.” Being asked, “What does the document now exhibited to you represent?” he answered’: “This paper first shows the list of the vessels I loaded up to that time, the 26th of May, when this contract was terminated, and in that list it shows the profits I made at that time on that number of vessels. It shows the name and tonnage of each vessel.” He then presented also another list, which he said represented the vessels that he should have had up to the time his contract ran out, figured on the same basis. In reference to this method of showing net profits actually made during the eight months that the contract was recognized and running, and the estimation on this basis of the profits that reasonably would have accrued on the work that should have been furnished the plaintiff and done by him on and after the 26th of May until the 1st of July, the witness Wm. P. Ross, who, as “manager of the steamship business” for the respondents, had made the contract, being asked, “What do you say as to the fairness of the calculations made by Mr. Lincoln?” said, “I do not know of any other method that would be as fair, because it deals with so many kinds of cargoes, and it all resolves itself into so many tons after all, whether it is the net register or actual cargoes does not matter.” It is clear to us that these issues of fact should have been submitted to the jury, and that the Circuit Court erred in withdrawing the case from the jury by directing a verdict for the defendants. Therefore the judgment is reversed, and the cause remanded to the Circuit Court, with direction to that court to award the plaintiff a new trial.