F contracted with a county to construct a public building, and
gave bond with K as surety for the performance of the contract. F
abandoned the contract. After procuring some modifications in it at
request of H, K assigned the contract to P and H as partners with
equal interests. P and A agreed with W to construct the building. H
then left the vicinity and engaged in other work elsewhere. W
constructed the building. K received the compensation under the
original contract, paid W in full
Page 113 U. S. 586
for the work done by him, and divided the profits with P,
claiming to be partner.
Held that H could recover one-half
of the profits from P and from K.
The facts which make the case are stated in the opinion of the
Court.
MR. JUSTICE WOODS delivered the opinion of the Court.
The bill was filed by Charles I. Ham, the appellee, against
Isaac N. Pearce and Andrew J. Kuykendall, the appellants. The
record showed the following facts:
On August 5, 1868, one Joseph K. Frick entered into a contract
in writing of that date with the County Court of Johnson County in
the State of Illinois, by which he agreed to build, according to
certain plans and specifications, a courthouse for said county at
Vienna, the county seat, furnishing the material and completing it
by the first Monday of September, 1870, in consideration whereof
the county court agreed to pay him $38,357 in the bonds of Johnson
county, bearing ten percent interest, and due in six years. The
bonds were to be paid in installments: one-fourth at the time of
the execution of the contract, one-fourth when the work was half
done, one-fourth when the work was three-fourths done, and the
residue when it was completed. Frick, to secure the performance of
his contract, executed to the judges of the county court a bond in
the penal sum of $20,000, with the appellant Andrew J. Kuykendall
as his surety.
Frick never did any work on the building, and, owing to some
misunderstanding with the county court, abandoned the contract and
told Kuykendall that he might go on and build the courthouse if he
chose to do so. On September 9, 1869, Kuykendall, as the agent and
attorney in fact of Frick, assigned the contract of the latter to
Ham and Pearce, Ham being the appellee, and Pearce one of the
appellants, who had formed a partnership for the purpose of
building the courthouse under said contract.
Page 113 U. S. 587
Before accepting the assignment, Ham, who was a practical
mechanic, read the contract and made an estimate of the cost of the
building according to the plans and specifications, and told Pearce
"that there was no money in the contract." He thereupon suggested
six changes in the plan which would greatly reduce the cost and
would not detract from the general utility of the building, and
explained them to the county court. The court, without insisting on
any reduction in the price to be paid, agreed that the changes
might be made, and suggested two others, to which Ham assented,
and, with the original contract of Frick thus modified, Ham and
Pearce accepted the assignment of the contract and undertook to
perform it.
About October 1, 1869, they began work on the building, did some
excavating for the foundation, and quarried and delivered some
stone. This work was carried on under the supervision of Ham, and
amounted in value to $690, the most of which was paid by Pearce,
but the sum so paid was afterwards refunded to him.
Afterwards Ham, believing that the work of building the
courthouse could be sublet so as to afford a large profit to Pearce
and himself, with that view entered upon a treaty with one
Wickwire, and on December 8, 1869, Wickwire, having assented to the
terms proposed by Ham, the firm of Ham & Pearce made a contract
in writing of that date with Wickwire by which he agreed to furnish
the materials and build the courthouse according to the modified
plans and specifications, and to complete it by the first day of
November, 1870, in consideration whereof Ham & Pearce agreed to
pay him $27,300 in the bonds of Johnson County at par, in four
equal installments: the first when Wickwire began the work; the
second when one-third; the third when three-fourths, and the fourth
when all the work was completed. Ham told Wickwire that he should
probably be in Vienna and see him every day, and if so he would
render him all the assistance in his power in the erection of the
building and the negotiation of the bonds. Kuykendall, as the agent
of Frick, had already received from the county court one-fourth of
the bonds which they were to pay for the building of the
courthouse, and at
Page 113 U. S. 588
once turned over to Pearce bonds of the face value of between
$8,000 and $9,000, and a special county order for $400. Having made
the contract with Wickwire, Ham left Vienna, and about February 1,
1870, engaged in the construction of a piece of railroad in Indiana
which he had contracted to build, and did not return until the
courthouse was completed. Wickwire, under the supervision and
inspection of an agent appointed by the county court, did in fact
furnish the materials and build the courthouse according to the
plans and specifications specified in Frick's contract as
subsequently modified. The work and materials seem to have been in
all respects satisfactory to the county court, who accepted the
courthouse and paid the contract price, $38,357, in the bonds of
Johnson county at par.
These bonds were delivered in installments by the county court
to Kuykendall, who used them, either directly or indirectly, to pay
Wickwire the amount which he was to receive for the building of the
courthouse, and divided the residue between himself and Pearce.
The object of the suit was to obtain an account of what was due
to Ham by virtue of his said partnership and partnership
enterprise, and that Pearce and Kuykendall might be decreed to pay
him what might be found due on such accounting either in cash or
Johnson county bonds.
Upon final hearing upon the pleadings and evidence, the circuit
court rendered a decree in favor of Ham against Kuykendall and
Pearce for $5,001. The appeal of Kuykendall and Pearce brings that
decree under review.
Ham and Pearce, it is conceded on all hands, engaged as partners
in the enterprise of building a courthouse for the County of
Johnson. It plainly appears that Ham secured such a modification of
the plan and specifications of the courthouse as to enable Pearce
and himself to build it at a profit, and not at a loss; that after
this modification the contract by which Frick had engaged to erect
the building was assigned to Ham & Pearce by Kuykendall, acting
as attorney in fact for Frick, and that Ham & Pearce sublet the
contract to Wickwire on such terms as would yield them a profit of
at least $10,000. Ham's
Page 113 U. S. 589
interest was worth, as it turned out, not less than $5,000.
Without his consent, Ham's share of the profits of his partnership
venture was appropriated by Kuykendall and Pearce. These facts,
alone considered, justify the decree of the circuit court and that
decree should be affirmed unless the reasons assigned by Pearce and
Kuykendall afford good ground for the appropriation by them of
Ham's share in the profits of the enterprise.
The answers of both Pearce and Kuykendall, which were not under
oath, alleged that after the contract between Ham & Pearce with
Wickwire had been made, Pearce, on account of the absence and
neglect of Ham, cancelled the contract, and Kuykendall cancelled
the assignment to Ham & Pearce of the contract of Frick. But it
appears from their testimony that this was only a mental operation.
There was in fact no cancellation of either the Wickwire contract
or of the assignment of the Frick contract. Pearce handed a copy of
the Wickwire contract to Kuykendall to be cancelled, but Kuykendall
immediately returned it to him uncancelled for safekeeping. The
assignment of the Frick contract was allowed to remain uncancelled
upon the records of the county court. What was done, as plainly
appears by the testimony of Pearce and Kuykendall, was this:
Wickwire, without any new contract in writing between him and
Kuykendall or between him and Kuykendall and Pearce, was allowed to
perform, and did perform without any change whatever in its terms,
the contract entered into by him with Ham & Pearce. Kuykendall
simply took Ham's place in the enterprise, agreeing verbally with
Wickwire that he would negotiate the county bonds at ninety cents
on the dollar. One excuse given for this is stated by Pearce to be
that when he went into the enterprise with Ham, it was with the
expectation that Ham, who was a practical builder, would
superintend the work and that he himself would manage the financial
affairs of the partnership. But this was the understanding when
they expected to carry out the contract themselves, and the
necessity for any supervision of the work or financial management
mainly ended when they sublet the contract to Wickwire.
Page 113 U. S. 590
He carried on the work apparently with fidelity, and certainly
to the satisfaction of the county court, under the eye of a
supervisor appointed by the court. The only financial duty to be
performed by Pearce under the contract of Ham & Pearce with
Wickwire was to draw the county bonds as the work progressed, and
hand them over to Wickwire as he became entitled to them. There was
no necessity for the supervision of Ham, and it is not alleged or
shown that any delay or damage resulted for want of his
supervision.
Some other pretext was needed for putting Ham out of the
enterprise and taking Kuykendall in. This was found in the alleged
fact that Ham had agreed with Wickwire to assist him in negotiating
the county bonds, or enough of them to raise $5,000, and had left
the neighborhood and failed to perform that part of his contract,
and that Wickwire, for want of $5,000 in cash, was unable and
refused to proceed with the construction of the building. Thereupon
it became necessary for Kuykendall, who insisted that he was liable
as surety for Frick for the building of the courthouse, to take
Ham's place and negotiate the bonds so that the work might proceed
to completion within the time limited by the Frick contract.
But the written contract with Wickwire, which embodied the
result of his treaty with Ham & Pearce, contained no provision
by which the latter bound themselves to negotiate the bonds for
Wickwire. He agreed to receive the bonds themselves as his
compensation. Whatever Ham may have said to Wickwire about
negotiating the bonds was a mere voluntary and conditional offer,
and formed no part of the consideration for the contract, and the
absence of Ham and his failure to help sell the bonds did not
release Wickwire from his obligation to perform his contract; nor
could the neglect of Ham to perform his individual promise, made
not to Pearce but to Wickwire, furnish a ground upon which Pearce
could legally dissolve his partnership with Ham without Ham's
consent.
But the testimony in the record is abundant to show that the
bonds sold readily at their market price, which was not less than
ninety cents on the dollars. They were the bonds of a solvent
county, and bore ten percent interest, payable annually,
Page 113 U. S. 591
and no sort of defense to them had ever, so far as appears, been
raised. There was therefore no reason why they should not readily
sell for ninety cents on the dollar, which was the price Wickwire
was willing to take for them. Anybody could have sold them. But the
hollowness of his excuse for turning Ham out of his enterprise and
taking Kuykendall in is found in the fact that when Wickwire came
to Pearce and told him he could not go on with the contract for
want of $5,000 in money, Pearce had in his possession between
$8,000 and $9,000 in Johnson County bonds, with more than one
year's interest at ten percent due thereon, and over $400 in a
special order, turned over to him by Kuykendall as the agent of
Frick, and being part of the first installment on the contract for
building the courthouse. These bonds and the special order were
without question the property of the partnership of Ham &
Pearce. All that it was necessary for Pearce to do was to sell the
bonds and furnish Wickwire with the money he said he wanted, or
hand him the bonds. Wickwire testifies that if the bonds had been
handed him, he thinks he would have begun the work. But Pearce,
according to his own testimony, never offered Wickwire the bonds,
or even informed him that he had them in his possession, and he
does not aver or swear that he made any effort to sell the bonds;
and, although he avers in his answer that he tried to raise the
$5,000 for Wickwire, he does not testify to the fact in his
deposition. It therefore plainly appears from the evidence that
when Wickwire told Pearce that he could not begin the work for want
of $5,000 in money, the latter had assets of the firm of Ham &
Pearce in his hands to the amount of nearly $10,000, which could
have been readily disposed of at ninety cents on the dollar, and it
does not appear that Pearce made any effort to sell the bonds or in
any other way raise the sum needed.
There is nothing in the testimony to show that Pearce did
anything more toward carrying on the business enterprise of the
firm of Ham & Pearce than was done by Ham. He did not
superintend the work or manage the finances of the firm. His only
part in the business of building the courthouse appears to have
been to keep partial and fragmentary accounts for
Page 113 U. S. 592
Kuykendall. It is true that, by some arrangement with Wickwire,
he accepted the orders of Kuykendall, given for labor and
materials, and paid them in merchandise to the amount of about
$20,000; but this was his own private business as a merchant,
carried on for his individual profit.
In his answer, Kuykendall bases his defense on the ground that
all he did in the matter was in the interest of Frick and as his
agent, and to protect himself for his liability as surety on
Frick's bond. But when he testifies in the case, it appears that he
was acting for himself only, and proposed to keep his share of the
profits made in the erection of the courthouse. He knew that when
Wickwire was asserting that he could not begin the work for want of
$5,000 in cash, Pearce had Johnson county bonds belonging to the
firm of Ham & Pearce, which could have been readily turned into
cash at ninety cents on the dollar, sufficient to raise between
$8,000 and $9,000, for he himself had delivered these bonds to
Pearce for the firm. He knew, therefore, that the excuse of Pearce
that he could not raise money for Wickwire was a subterfuge. Both
he and Pearce knew that Ham had not abandoned the enterprise, for,
in the spring of 1870, Pearce visited Ham in Indiana and proposed
to him that they should allow Kuykendall an interest of one-third
in their venture, and that Ham declined to accede to the
proposition.
Kuykendall testifies that he sold $16,000 of the county bonds
for eighty cents on the dollar, but he does not mention the name of
any purchaser at that price, and no witness testifies that he ever
bought a bond for less than ninety cents except one who says he
bought two bonds, not of Kuykendall but of one McDemot, who at
first asked eighty-five or ninety cents on the dollar for this
bond, but afterwards took seventy-five cents because, as he said,
"he was bound to have some money." But even if Kuykendall did sell
a part of the bonds at eighty cents on the dollar, he cannot impose
upon Ham a loss incident to his own unwarrantable interference in
Ham's affairs.
In their answers, both Pearce and Kuykendall aver that after the
alleged cancellation of the contract between Ham & Pearce and
Wickwire, Pearce had no further concern with the enterprise
Page 113 U. S. 593
or interest therein, and Kuykendall avers that as agent of Frick
he sublet the contract to Wickwire. But in his deposition,
Kuykendall testifies that he divided equally with Pearce the
profits made on the contract, which statement is not contradicted
by Pearce in his testimony.
Ham had an interest in the assets and prospective profits of the
firm of Ham & Pearce. It does not appear that he failed to
perform any duty which, as a member of the firm of Ham &
Pearce, he had undertaken to perform, or that, with good faith on
the part of Pearce, the partnership enterprise could not have been
successfully carried out. And however the question may be decided
whether one partner may, by his own mere will, dissolve a
partnership formed for a definite purpose or period, it is clear
that upon such a dissolution, one partner cannot appropriate to
himself all the partnership assets or turn over the share of his
partner to another with whom he proposes to form a new
partnership.
The case as presented by the evidence is this: Pearce undertook,
without any just cause, to exclude Ham, his partner, from an
interest in a valuable contract in which they were equally
concerned, and to take in Kuykendall in his stead, and Kuykendall,
knowing that Pearce could not rightfully exclude Ham, conspired
with Pearce to accomplish that purpose, and undertook to
appropriate to himself the profits of the contract which of right
belonged to Ham. It is clear that these actings and doings of
Kuykendall and Pearce had no effect on the rights of Ham; that he
is entitled to one-half of the profits of the contract. This
conclusion finds ample support, if support be needed, in the case
of
Ambler v.
Whipple, 20 Wall. 546.
The profits are easily ascertained. They would have consisted of
$10,000 in the bonds of Johnson County, bearing ten percent
interest, and at the time of the bringing of this suit there was at
least three years' interest due on the bonds, making in principal
and interest $13,000. Estimating the bonds to be worth only ninety
cents on the dollar, the amount due Ham exceeded the decree
rendered in his favor by the circuit court, even after allowing
Kuykendall a reasonable compensation for any services rendered by
him.
Page 113 U. S. 594
The entire profits were appropriated by Pearce and Kuykendall,
and they must account to Ham for his share.
Decree affirmed.