Perkins v. Hart
24 U.S. 237 (1826)

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U.S. Supreme Court

Perkins v. Hart, 24 U.S. 11 Wheat. 237 237 (1826)

Perkins v. Hart

24 U.S. (11 Wheat.) 237

Syllabus

Where there is a special agreement open and subsisting at the time the cause of action arises, a general indebitatus assumpsit cannot be maintained.

But if the agreement has been wholly performed or if its further execution has been prevented by the act of the defendant or by the consent of both parties, or if the contract has been fully performed in respect to any one distinct subject included in it, the plaintiff may recover upon a general indebitatus assumpsit.

A settled account is only prima facie evidence of its correctness, at law or in equity; it may be impeached by proof of fraud or omission or mistake, and if it be confined to particular items of account, concludes nothing as to other items not stated in it.

If to a bill for an account, the defendant plead or in his answer rely upon a settled account, the plaintiff may surcharge by alleging and proving omissions in the account or may falsify by showing errors in some of the items stated in it.

The rule is the same in principle at law; a settled account is only prima facie evidence of its correctness; it may be impeached by proof of unfairness or mistakes in law or fact, and if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it.

Where a case is certified to this Court upon a division of opinions of the judges below, and the points reserved upon which they were divided are too imperfectly stated to enable this Court to pronounce any opinion upon them, this Court will neither award a venire de novo, nor certify any opinion to the court below upon the points reserved, but will merely certify that they are too imperfectly stated.

This was an action of general indebitatus assumpsit, brought in the Circuit Court of Ohio for work and labor, care and diligence, by the plaintiff done and bestowed as an agent and attorney in exploring, showing, surveying, and selling, the lands of the defendant's testator; also in the searching of records, investigating titles, and in the payment of the taxes of the testator. The declaration contains the other general money counts. The plaintiff also filed what is styled an additional "bill of particulars"

Page 24 U. S. 238

for exploring, giving information of the situation and value, superintending law suit with Granger, attending to division with Mather's heirs, and for general superintendence of Hart's landed interest in Ohio (except for paying taxes), $3,500.

By consent of the parties the jury found a verdict for the plaintiff of $4,308.70 damages if, upon the points reserved, the court should be of opinion that the law is for the plaintiff, but if, upon the points reserved, the court should be of opinion that the law is for the defendant, then it found for the defendant.

The opinions of the judges below being opposed, the cause was removed to this Court upon a certificate of the disagreement upon the three following points:

1. That the whole evidence and Hart's (the testator's) letter of January 14, 1812; Perkins' (the plaintiff's) letter in reply of February 10, 1812, and Hart's letter of March 9, 1812, in reply to Perkins, constitute a special agreement, investing Perkins with the agency of Hart's land in the State of Ohio open and subsisting at the time the cause of action is claimed to have arisen, which precludes Perkins from recovering in this action.

2. That the whole evidence, and the letters above cited constitute a special agreement defining the nature and extent of Perkins' agency and settling the subjects upon which he was to receive compensation and the amount of that compensation, the legal operation of which

Page 24 U. S. 239

agreement is to preclude Perkins from claiming compensation for anything done in the execution of his agency except according to the terms of that agreement.

3. That the plaintiff cannot recover for the two items in the bill of particulars claimed and charged to have arisen as matters of account between the parties in 1814 and 1815 because, the plaintiff, on 1 February, 1815, and 19 March, 1819, exhibited and stated his general account against William Hart, upon each of which a balance was due from and paid by the said William, as a settlement upon an account stated, which precludes the plaintiff from recovering in this action for said two items claimed to have been due before the said accounts were rendered.

In the letter of Hart (the defendant's testator) of 14 January, 1812, he requested the plaintiff to give him his most favorable terms of agency, to appoint sub-agents to transact the business where he (the plaintiff) might deem necessary, with such compensation as he might agree upon with them. The letter then proceeded as follows:

"State the amount of commissions you shall expect me to pay on account of sales that shall be collected and remitted, but no commissions to be paid by me till the collections are made. Provided sales are made by me in exchange for lands, and if I should draw on you for the amount to be paid in lands at a price agreed on or otherwise if necessary, to be left with you to be ascertained; in such

Page 24 U. S. 240

case, what should you expect to charge on sales of that nature? Please be particular in stating your terms of agency, and make them as favorable as possible."

In the plaintiff's letter, in reply of February 10, 1812, he says:

"My commission on sales made by me, the money collected, and remitted, is eight percent. When contracts are made (as is sometimes the case), purchasers make a payment and then give up the land so as to be left without encumbrance to be sold again, 50 percent on such receipt. On these two items, the commission cash, as it has been cash received. In case the agency should be closed and a settlement made, and contracts remain on hand unsettled, then, in all those contracts that should be carried into effect, five percent commission, received in contracts, with a conveyance of the lands covered by the contract or contracts received. On sales made in exchange for lands, &c., three percent commissions, to be received either in contracts here, on lands here at retail price. Always, as far as is practicable, receive commissions in that which shall be similar to that in which it is charged."

The letter from the defendant's testator dated 9 March, 1812, in reply to the plaintiff, acknowledges the receipt of the above letter and then adds,

"Your observations in regard to the mode of selling new lands are doubtless sanctioned by experience, and I am happy to commit the agency of my property to your experience and good judgment, from whence I expect to derive peculiar advantage. "

Page 24 U. S. 245

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