A., at Valparaiso, was the agent, under an agreement of May 7,
1849, of B., at Boston, who was sending him adventures and
shipments of goods, he selling the goods and investing the proceeds
in other merchandise consigned to B., who sold the return cargoes;
keeping an account of the profit and loss. A. was to have
one-quarter of the net profits of B.'s business, that he, A.,
"conducted to completion," but was at liberty to withdraw from the
arrangement at any time,
"by giving B. so much notice that any voyage he, B., may have
commenced previous to receipt of such advice, shall receive the
full benefit of all A.'s service to its final accomplishment."
On the 22d of February, 1850, A. wrote to B. that he had
resolved to join a Valparaiso house, which he named, but added:
"I will manage your business as usual until 31st December, which
will afford you ample time
Page 84 U. S. 124
to make your arrangements for sending someone out, if you are
inclined."
B. received this letter May 29th, 1850, and
afterwards
loaded and dispatched a ship consigned to A., or "in his absence,"
to the house which he had mentioned as the one he had resolved to
join. A. concluded the whole business of this voyage as he had done
that of previous voyages, but it was not "conducted to completion"
prior to December 31, 1850.
Held that A.'s letter of 22d February was to be taken
as if he had said:
"In the interval, before the arrival of any new agent to
represent you, I will perform the same services for the new voyages
not covered by the contract of May 7, 1849, that I have
rendered in the voyages covered by the contract, and that your new
agent would perform were be here,"
and, accordingly, that for all services performed by him in
regard to
this voyage he was entitled to be paid what the
services were reasonably worth.
2. The rule of law that the interpretation of written
instruments is a question of, law for the court, is applied with
full force to agreements to be deduced from the correspondence of
the parties, and the fact that the language of the letters
containing the offer or acceptance is doubtful, does not relieve
the court of this duty, or make the question one of fact for the
jury. It is only where terms used are technical, or terms having a
peculiar meaning in a particular trade or place, that the aid of
the jury is invoked to ascertain their meaning.
3. Where interest is allowed, not under contract, but by way of
damages, the rate must be according to the
lex fori.
In June, 1843, G. J. Foster and W. W. Goddard entered into an
agreement, in writing, under seal, by which Foster agreed to go to
the west coast of South America, and there reside as Goddard's
agent for five years, selling the outward cargoes, purchasing
return cargoes, collecting and forwarding information, and
attending to the business and dispatch of the defendant's ships,
giving his whole time to the business, in consideration of
one-tenth of the net profits at the end of the term, or $1,000 per
annum if the one-tenth of the profits amounted to less than that
sum.
Under this agreement, Foster went to the west coast of South
America, and there resided during the five years, performing his
part of the agreement, and at its expiration, in 1848, returned to
Boston, where the parties made a new agreement in writing and under
seal, dated May 7, 1849,
Page 84 U. S. 125
by which Foster agreed to return to the west coast, upon a
similar employment,
giving his whole time to Goddard's
business in consideration of "one-quarter of the net profits
of Goddard's business in that trade, that he (Foster) shall have
conducted to completion," to be paid to him on his return.
This agreement provided that Foster was to leave in Goddard's hands
his share of the profits under the former agreement; that Foster
might withdraw from this arrangement,
"which he is at liberty to do at any time, by giving said
Goddard so much notice that
any voyage he may have commenced
previous to receipt of such advice, shall receive the full benefit
of all said Foster's services to its final accomplishment, and not
otherwise."
It also provided that Goddard might "annul the agreement
whenever he may choose to do so," and that Foster should be liable
"to the full extent of his interest and means for all losses in the
business, and for all risks and casualties attendant thereon."
Foster under this agreement, returned to the coast and continued
to transact the business required of him, and on the 22d of
February, 1850, wrote to Goddard that he had determined to join the
house of Alsop & Co. on the 1st of January, 1851. In this
letter he said:
"
I will manage your business as usual until the 31st of
December, which will afford you ample time to make your
arrangements for sending someone out, if you be inclined."
On the 13th of April, 1850, Goddard replied:
"I am very glad to learn your decision to join the house, it
being what I would have advised for your own interest."
Goddard's reply was received by Foster May 29, 1850.
After sending this letter, Goddard loaded and dispatched from
Boston the ship Harriet Erving, upon a voyage styled hereinafter
"her third voyage." She left Boston on the 21st of August, arrived
at Valparaiso on the 8th of December, and sailed thence December
27th, for points on the coast, to complete her cargo, and thence to
Boston.
From the inception of this voyage, Goddard advised Foster
Page 84 U. S. 126
by letter of his intentions in relation to her outward and
return cargoes, and instructed him fully as to what he, Foster
should do on the coast in relation to the same.
The cargo was consigned to Foster "or, in his absence, to Alsop
& Co."
When the ship sailed from Boston, Goddard instructed the captain
by letter as follows:
"I wish you to proceed in her with all possible dispatch direct
to Valparaiso, where my
agent, Mr. G. J. Foster or, in his
absence, Messrs. Alsop & Co., will dispose of your outward
cargo, provide for the wants, and direct your further
movements."
Foster concluded the whole business of this voyage in the same
manner in which he had done that of previous voyages, prepared and
forwarded to Goddard a note or memorandum of cargo suitable to be
sent to the coast, purchased and had in readiness for the ship her
return cargo, and dispatched her from the coast, directed the sale
of her outward cargo, and was in constant communication with
Goddard in relation thereto.
He joined the house of Alsop & Co. on the 1st of January,
1851. At that time, there had been sold of the outward cargo
$96,000, and there was afterwards sold $150,000. The entire service
had been performed, so far as the homeward cargo was concerned, and
nine-tenths of his whole services in relation to the voyage had
been performed.
After joining the house of Alsop & Co. he completed the
business of the voyage by directing, as before, the sale of the
remainder of the cargo. This was done with the knowledge of and, as
it appeared, without objection on the part of the other partners in
the house of Alsop & Co.
After joining the house, he sent a part of the cargo to other
points on the coast for a better market, in the exercise of his
discretion as Goddard's agent, as he had done with previous
cargoes, which Alsop & Co. never did for any of their
correspondents, unless expressly authorized. The sales between
January 1 and June 30, at Valparaiso and Lima,
Page 84 U. S. 127
amounted to $135,000, and the remainder, about $15,000, was sold
during the years 1851, 1852, and 1853.
The sales of the outward cargoes and the purchases of the
homeward cargoes were made by Alsop & Co., who advanced the
necessary funds, and charged and received a commission
therefor.
Foster advised Goddard, by private letter of February 25, 1851,
of the sales he was making of the outward cargo, and that he should
work off part of the goods "through Callao," the port of Lima.
Alsop & Co. rendered accounts of the sales at Valparaiso and
Lima to Goddard.
In November, 1851, one Erving arrived on the coast, to act as
Goddard's agent in the same business, in subsequent voyages. He
took no part in the unfinished business of this voyage.
Foster returned to the United States in 1856, when Goddard
expressed himself perfectly satisfied with everything he had done
in his business.
On the 1st of May, 1857, Foster filed a bill in equity against
Goddard in the circuit court for the District of Massachusetts, for
an account, and to recover his share of the profits under the two
agreements of 1843 and 1849. Goddard having appeared and answered,
a decree for an account was entered, and an account was taken
before a master. Upon that accounting Foster claimed, under the
agreement of May 7, 1849, a quarter of the profits of the voyage of
the Harriet Erving, on the ground that by a subsequent agreement of
the parties, shown by their correspondence, it was to be considered
as included in that agreement, and that it was substantially
brought to a completion before January 1, 1851. The master so
decided, and reported as due to Foster for his share in the profits
of this voyage, $21,943. Upon exceptions to the master's report,
the circuit judge disallowed this item, [
Footnote 1] holding that this voyage of the Harriet
Erving was not covered by the agreement between the parties of
Page 84 U. S. 128
May 7th, 1849, and upon appeal this Court affirmed (and upon the
same ground) the final decree, whereby this item was disallowed in
that suit. [
Footnote 2] Goddard
satisfied the final decree in that suit.
In this state of things Foster sued Goddard in assumpsit for
services rendered by him in this voyage of the Harriet Erving.
The first count was on a special agreement to pay one-fourth of
the profits of the outward and homeward voyages, being $23,600.44,
with interest from March 1st, 1858. [
Footnote 3] The second, on a promise to pay a reasonable
compensation. The third, on a promise to pay a reasonable
compensation for services to January 1, 1851. The fourth and fifth
counts were the common counts of
indebitatus assumpsit and
quantum meruit. The damages were laid at $50,000.
The plea was the general issue with notice of defenses:
1. A former recovery by the same plaintiff against the same
defendant in the suit in equity in the circuit court for the
District of Massachusetts, brought for an account under the
agreement between the parties of May 7, 1849, and that the
defendant's services, if any, now sued for, were rendered under
that agreement.
2. The statute of limitations.
Pursuant to the notice the defendant offered in evidence the
record in the equity suit as a bar to the pending action, but the
court rejected the evidence.
He also offered the same record in evidence as a bar to all
claim in the action for services rendered for him before the close
of the year in which the plaintiff had given notice of his
withdrawal from the second written agreement. But the court
rejected the evidence as inadmissible even for that purpose.
Evidence was offered by the plaintiff of the value of his
services, to which the defendant objected, insisting that the
services of the plaintiff in respect to that voyage, if any, were
rendered under the written agreement, but the court
Page 84 U. S. 129
ruled that the services shown were outside of that agreement,
and admitted the evidence.
To all these rulings the defendant excepted.
The court having charged that neither party was to suffer in any
way from the lapse of time, and thus disposing of the plea of the
statute of limitations, charged further among other things:
1st. That the plaintiff could not recover under the first count
of the declaration, nor any part of the profits of the voyage.
2d. That the plaintiff was entitled to recover such sum as upon
the evidence the jury might regard to be the reasonable
quantum
meruit value of his services.
The court added:
"That includes a consideration by you of what his services were,
the entire scope of the trade, and Mr. Foster's qualifications for
those services at the time he rendered the services in reference to
this voyage, and the consideration of how much these services were
in bulk or in value before the 1st of January, 1851, and the
consideration of the extent of these services after that date, and
whether they are to be diminished after by any payment or allowance
which ought to be charged against Mr. Foster because of any
compensation he may have received as a member of the firm of Alsop
& Co. The whole question is one of fact for you to pass upon as
men of judgment and intelligence, and upon the evidence, applying
your best faculties to it."
"If you arrive at any sum which you regard as proper for the
value of these services, then Mr. Foster is entitled to interest on
that sum at the rate provided by law of New York, 7 percent per
annum, from the time of the commencement of this suit."
3d. That there was an agreement between the parties for the
rendering of some service distinct and independent from that of May
7, 1849; that that agreement as matter of law, as one drawn from
correspondence between the parties, the jury were bound to find,
and that there was an agreement between the parties for the
performance, by Mr. Foster of such services as he rendered in
respect of the third
Page 84 U. S. 130
voyage of the Harriet Erving, to be compensated for at such
rates as these services reasonably deserved.
To the second and third of the charges, as above given, the
defendant excepted; no exception being taken by either party to the
first. The jury found for the plaintiff $29,407, and the defendant
brought the case here for review.
The reader has doubtless seen that, throwing out the question
how far the meaning of the old contract had been settled by the
decision in the equity suit in the circuit court for Massachusetts,
and the question of interest, there were really but two questions
in the case.
I. What did the agreement as made by the correspondence
(Foster's letter of February 22, 1850, and Goddard's reply, being
chief features in it) mean?
Did it mean, as Goddard, the defendant, insisted, that Foster
would perform all the duties required by the old contract on the
terms and for the compensation specified in it, that is to say,
would perform them
under that contract, a construction
which, as this old contract gave nothing but for "business
conducted to completion," would give nothing for any service
performed before December 31, 1850, as the voyage in question was
not so conducted, to a conclusion, before that date; while for any
service performed after that date the argument was susceptible of
being made that all that the plaintiff did he did as a member of
the firm of Alsop & Co., and was paid by the commission given
to that house.
OR, as Foster contended it was, was the meaning of the agreement
as if he, Hoster, had written:
"In the interval, before the arrival of any new agent to
represent you, I will perform the same services for the new
voyages, not covered by the contract of May 7, 1849, that I have
rendered in the voyages covered by the contract and that your new
agent would perform were he here?"
a construction which would naturally imply that the new services
were to be paid for at such reasonable rates as they were fairly
worth.
II. Was the question
"whether there was an agreement
Page 84 U. S. 131
between the parties, shown by the correspondence, for the
rendering of the services in question, distinct and independent of
the agreement of May 7, 1850, a question of law to be determined by
the court, or a question for the jury? "
Page 84 U. S. 132
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Compensation for services rendered by the plaintiff, as agent
for the defendant in conducting a certain commercial adventure at
his request and for his benefit, is claimed by
Page 84 U. S. 133
the plaintiff in the present suit, which is an action of
assumpsit for the value of the services rendered.
Prior services of like kind, in transactions of a similar
character, had been rendered by the plaintiff for the same
defendant, to which, though not embraced in this suit, and to the
litigation which grew out of the same, it becomes necessary to
advert in order to a clear understanding of the present
controversy.
Those prior transactions had their origin in two written
agreements between the parties. By the first agreement, dated June
24, 1843, the plaintiff engaged, among other things, to proceed at
once to Valparaiso, and there to remain for the term of five years,
and to devote himself, for the whole time, exclusively to the
business of the other party, such as the sale and purchase of
cargoes, collecting freight moneys, procuring return freights,
eliciting orders for the purchase and shipment of goods, effecting
the sale of vessels, and collecting and forwarding all such
information as he could obtain respecting the trade. In
consideration of which the defendant engaged that he, the
plaintiff, shall, at the expiration of five years, be entitled to
one-tenth of the net profits of his business in that trade, subject
to certain deductions for interest, cost, and expenses, as therein
specified. Under that agreement, the plaintiff proceeded to
Valparaiso, where he continued to reside during the period
prescribed, and well and truly performed all things required in the
agreement. Having performed the agreement, the plaintiff returned
to Boston, where the defendant resided, and on the 7th of May,
1849, they entered into the second agreement, in which the
plaintiff engaged to proceed at once to the west coast of South
America, and to devote his whole time in those parts, as also in
Mexico and California, exclusively to the management of the
business of the defendant in those countries, such as the sale and
purchase of merchandise, or any other property, collecting
freight-moneys, procuring freights and consignments of goods,
eliciting orders for the purchase and shipment of property,
investing money, drawing and negotiating bills of exchange, and
forwarding
Page 84 U. S. 134
all such information as he could obtain respecting the trade. In
consideration of which the defendant engaged that he, the
plaintiff,
"shall, on his return, be entitled to one-fourth of the net
profits of his business in that trade, that he (the plaintiff)
shall have conducted to completion,"
subject to certain deductions for interest, and all costs and
expenses incurred, both at home and abroad, in prosecuting the
business, including port charges and the expense of sailing and
keeping in repair the vessels employed, the defendant having the
right to purchase, charter, freight, and sell the vessels designed
for the trade at his option, charging or crediting in the general
account the profit or loss in every such transaction. What funds
the plaintiff had, less two thousand dollars, he engaged to leave
in the hands of the defendant, which he agreed not to abstract, nor
any portion of the profits,
"until he shall see fit to withdraw from the present
arrangement, which he is at liberty to do at any time by giving the
defendant so much notice that any voyage he may have commenced,
previous to the receipt of such advice, shall receive the full
benefit of all of the plaintiff's service to its final
accomplishment, and not otherwise."
Pursuant to the agreement the plaintiff proceeded without delay
to the place designated, and conducted the described business until
the twenty-second of February of the next year, when he gave the
required notice to take effect at the close of the year, and that
on the first of January of the succeeding year he should join the
house of Alsop & Co., and he asked for an account. On the
thirteenth of April of the same year, the defendant acknowledged
the receipt of the letter written by the plaintiff, giving the
required notice, approving the decision the plaintiff had made to
join that house, and promised to comply with his request "as
speedily as possible."
Briefly described, the general mode of conducting the business
under each agreement was by adventures and shipments of goods,
procured at Boston by the defendant and consigned to the plaintiff,
by whom the merchandise was sold and the proceeds invested in other
merchandise which
Page 84 U. S. 135
was consigned to the defendant, who sold the return cargoes, and
he kept the books and vouchers, showing the exact profit or loss on
each adventure.
Large profits were earned in the business, and at the expiration
of the period limited for the continuance of the agreement, a large
sum was due to the plaintiff in the hands of the defendant, where
it had been allowed to remain without his rendering any account.
Repeated requests for an account having failed to secure one, the
present plaintiff, on the first day of May, 1857, instituted a suit
in equity in the circuit court for the District of Massachusetts,
and the cause having proceeded to final hearing, and the court
having entered a decretal order in favor of the plaintiff, sent the
cause to a master to ascertain what the plaintiff was entitled to
recover. He made a report in which he allowed, among other matters,
the claim embraced in the present suit.
Ten exceptions were filed by the present defendant to that
report, but it will not be necessary to refer to anyone of them,
except the tenth, which is substantially as follows: for that the
said master has allowed the complainant one-fourth of the profits
made by the respondent in the use and employment of a vessel called
the Harriet Erving and her cargo during her third voyage, which was
not sought to be recovered by the complainant in his original or
amended bill, nor was the vessel or cargo or the profits resulting
therefrom during the said voyage, embraced in the said second
agreement, nor in any contract or agreement made by the respondent
with the complainant, but were solely and exclusively at the profit
and loss of the respondent.
Two of the objections taken to the finding of the master in
respect to that voyage, as expressed in that exception, were
sustained by the circuit court:
(1) That the voyage was not within the written agreement, as it
was not commenced when the plaintiff gave the notice of his
intention to withdraw from the arrangement nor when the defendant,
on the thirteenth of April following, acknowledged the receipt of
the notice and expressed his approval of the step taken by the
plaintiff.
(2) That the proofs were not sufficient to
Page 84 U. S. 136
warrant the conclusion that the parties ever agreed that this
voyage should be settled and adjusted within the principles of the
written agreement; and if they did so agree, that there was no
proper allegation in the bill to support such a decree.
Governed by those views the circuit court sustained the
exception to the report allowing the claim, and on appeal to this
Court the decree of the circuit court sustaining the same was
affirmed. [
Footnote 4]
Payment of the claim being refused, the plaintiff, on the
fourteenth of August, 1862, instituted the present suit in the
Court of Common Pleas for the City and County of New York, where he
resides, to recover compensation for his services rendered in
respect to that voyage, and the defendant, being a citizen of the
state of Massachusetts, removed the cause into the circuit court
for the first-named district. By the record it appears that the
declaration contained a count on a special agreement to pay
one-fourth of the profits earned by the ship on the voyage not
adjusted in the prior suit, but it will not be necessary to remark
upon that count, as the court ruled and instructed the jury that
the plaintiff could not recover under that count, nor for any part
of the profits of the voyage. Apart from that the declaration also
contained four other counts, of which the second and third alleged
a promise to pay a reasonable compensation for the services
rendered, and the fourth and fifth were the common counts of
indebitatus assumpsit, and
quantum meruit.
Service was made and the defendant appeared and pleaded the general
issue, and gave notice that he would give evidence of a former
recovery by the plaintiff against the defendant in the said suit in
equity in the circuit court, founded upon the written agreement,
and that the services of the plaintiff, if any, as claimed in the
suit, were rendered under the same agreement. He also gave notice
that he would give evidence to prove that the alleged causes of
action did not accrue within six years next before the commencement
of the action.
Page 84 U. S. 137
Testimony was introduced on both sides, and the jury, under the
instructions of the court, returned a verdict in favor of the
plaintiff for the sum of twenty-nine thousand four hundred and
seven dollars and thirty-seven cents, and the defendant excepted
and removed the cause into this Court. Exceptions were taken by the
defendant both to the rulings of the court in admitting and
rejecting evidence, and to the refusal of the court to instruct the
jury as requested by the defendant, and to the instructions which
the court gave to the jury at the request of the plaintiff.
Pursuant to the notice given by the defendant he offered in
evidence the record in the equity suit as a bar to the pending
action, but the court rejected the evidence and the defendant
excepted. He also offered the same record in evidence as a bar to
all claim in the action for services rendered for the defendant
before the close of the year in which he gave the notice of his
withdrawal from the second written agreement, but the court
rejected the evidence as inadmissible even for that purpose, and
the defendant excepted to the ruling. Evidence was offered by the
plaintiff of the value of his services, to which the defendant
objected, insisting that the services of the plaintiff in respect
to that voyage, if any, were rendered under the written agreement,
but the court ruled that the services shown were outside of that
agreement, and admitted the evidence, t which the defendant
excepted.
Evidently these three rulings depend upon the same
considerations, and they present one of the most important
questions involved in the bill of exceptions. Valuable services
were rendered by the plaintiff in relation to that adventure.
Conceding that, still it would follow, if, by the true construction
of the instrument, he was required to perform the services under
that agreement, that the record of the former suit between the
parties is a bar to the present action. Both parties admit that
proposition, but if the written agreement by its true construction
did not require him to render the services in question, then the
record of the former suit is no bar, because in that view of the
case the
Page 84 U. S. 138
services rendered and for which compensation is sought in the
present action were not in issue in the prior litigation, as the
causes of action in the two suits are wholly distinct.
Enough has already been remarked to show that the defendant
himself was of the opinion in the former suit that the services
were not rendered under the written agreement, and that the circuit
court came to the same conclusion, which was in all things affirmed
by this Court. Much discussion of the question, therefore, would
seem to be unnecessary, as the better opinion is that the question
is conclusively settled by the decree in the last-named case.
Suppose, however, the question is an open one and is unaffected by
those decisions, still the Court is of the opinion that the view
taken by the defendant in his exception to the master's report in
the former suit is correct.
By the terms of the written agreement it is very clear that the
plaintiff was not required to render any service in any voyage to
be commenced after the receipt by the defendant of the notice of
the plaintiff withdrawing from the arrangement, as more fully
appears from the mode prescribed of giving the notice, and its
effect, as stipulated in the instrument. Such funds as the
plaintiff had, less $2,000, he was to leave in the hands of the
defendant, and the stipulation was that he should not abstract
those funds, nor any portion of his profits, until he should see
fit to withdraw from the arrangement, which he was at liberty to do
at any time by giving the defendant so much notice that any
voyage
"he may have commenced, previous to the receipt of such advice,
shall receive the full benefit of all the plaintiff's services to
its final accomplishment."
Voyages commenced before the notice of withdrawal was given were
within the agreement, whether the vessels had arrived at their port
of destination or not, but the plaintiff was not required to render
any service under that agreement in relation to voyages projected
subsequently, as he was to have no interest in such adventures, not
being entitled to any part of the profits nor compelled to share in
the loss. One-fourth of the profits of the business "conducted to
completion" belonged to the
Page 84 U. S. 139
plaintiff, and in respect to all such voyages he was liable,
"to the full extent of his interest and means, for all the
losses that may be made in the business, as also for all the risks
and casualties attendant thereon."
Taking these two provisions of the agreement together, it is
quite clear that the former decisions in the equity suit were
correct, as they show that the plaintiff was allowed to withdraw at
any time, on giving the required notice, subject to this reasonable
and necessary limitation, that as he was to be compensated by a
share in the profits of the adventures the required notice should
be such that he would remain long enough to complete the business
in every voyage from which his compensation was to come. Where
profits were made in a voyage, conducted to completion, he was
entitled to one-fourth of the profits, but if the voyage resulted
in a loss, he was liable to the full extent of his interest and
means for his proportion of the same, showing very plainly that his
agency under the written agreement was limited to voyages commenced
before the notice was given, as no one, it is presumed, will
contend that he was required to render services without
compensation, and to be liable for a share of the loss in an
adventure in which he had no interest.
Opposed to this view is the suggestion that the plaintiff agreed
to devote his whole time to the business, but the court is of the
opinion that the word business, as used in that connection, must be
limited to the period of the full employment of the plaintiff
before the notice of withdrawal was given, as his undertaking
subsequent to that notice was merely to conduct the business,
meaning the business of the voyages previously commenced, to
completion, or, as expressed in the phrase describing the character
of the notice to be given, that he shall give
"so much notice that any voyage he, the defendant, may have
commenced previous to the receipt of such advice, shall receive the
full benefit of all the plaintiff's services to its final
accomplishment."
Viewed in the light of these suggestions, it is plain, we think,
that the word business, as used in the first clause of
Page 84 U. S. 140
the agreement, was not intended to have any larger or different
meaning from the other parts of the instrument which describe, in
detail, the nature of the services he was required to perform.
Sufficient has been remarked to show that the exceptions under
consideration must be overruled.
Instructions were also given by the court to the jury in respect
to the right of the plaintiff to recover upon the other counts, to
many of which the defendant also excepted. Those deemed material to
be noticed in this connection, are in substance and effect as
follows:
(1) That the plaintiff could not recover under the first count
of the declaration, nor any part of the profits of the voyage.
(2) That he might recover reasonable compensation under the
other counts for such services as he rendered, if he satisfied the
jury by the evidence in the case that he was employed by the
defendant to perform service in respect to that voyage, by an
agreement distinct and independent of the said written agreement,
and that the jury, if they find for the plaintiff, should allow
interest upon the amount at the rate of seven percent from the
commencement of the suit.
(3) That the evidence of the agreement, consisting of
correspondence between the parties, the question whether it amounts
to an agreement or not is a question of law, and that the court
instructed the jury that there was an agreement between the parties
for the performance by the plaintiff of such services as he
rendered in respect to the voyage in question, to be compensated
for at such rates as those services reasonably deserved.
Before examining the instructions, some brief reference must be
made to the evidence. In the letter giving notice of his intention
to withdraw from the arrangement, the plaintiff stated that he
would manage the business of the defendant until the close of the
same year, and it appears that the defendant subsequently loaded
and dispatched the ship, whose third voyage is in question,
consigning her to the plaintiff. She left Boston on the
twenty-first of August, arrived at Valparaiso on the eighth of
December, and sailed thence on the twenty-seventh of the same month
for Coquimbo
Page 84 U. S. 141
and other points on the coast to complete her cargo, and thence
returned to Boston, her port of ultimate destination.
From the inception of the voyage, the defendant advised the
plaintiff by letter of his intentions in respect to her outward and
return cargoes, and instructed him fully as to what he, the
plaintiff, should do on the coast in relation to the adventure. He
consigned the cargo to the plaintiff, or, in his absence, to Alsop
& Co., as appears by the bill of lading, and when the ship
sailed he instructed the master to proceed with all possible
dispatch direct to Valparaiso, informing him that the plaintiff, as
his agent, or, in his absence, the firm named in the bill of
lading, would dispose of the outward cargo, provide for the wants
of the ship, and direct his further movements.
Suffice it to say the plaintiff concluded the whole business of
the voyage in the same manner as he had conducted the business of
previous voyages -- that is, he prepared and forwarded to the
defendant a memorandum for a cargo suitable to be sent to that
market, purchased and had in readiness for the ship her return
cargo, and dispatched her from the coast and directed the sale of
her outward cargo, and was in constant correspondence with the
defendant in relation to the adventure from its inception to its
final consummation.
Error is assigned as to the second and third instructions.
1. Argument to show that the second is correct is hardly
necessary, as it is quite clear that the plaintiff is entitled to
recover a compensation for his services, if he proved that the
services were rendered at the request of the defendant under some
agreement wholly distinct from the written agreement embraced in
the prior litigation. Indebitatus assumpsit is founded upon what
the law terms an implied promise on the part of the defendant to
pay what in good conscience he is bound to pay to the plaintiff,
consequently where the case shows that it is the duty of the
defendant to pay, the law imputes to him a promise to fulfill that
obligation. [
Footnote 5]
Page 84 U. S. 142
2. Next error assigned is that the court erred in charging the
jury that the correspondence showed an agreement between the
parties distinct from the prior written agreement which was
litigated in the equity suit, but the Court is of the opinion that
the charge was correct, as it is well settled law that written
instruments are always to be construed by the court, except when
they contain technical words, or terms of art, or when the
instrument is introduced in evidence collaterally, and where its
effect depends not merely on the construction and meaning of the
instrument, but upon extrinsic facts and circumstances, in which
case the inference to be drawn from it must be left to the jury.
[
Footnote 6] Where the question
was whether there was a contract between two parties to be deduced
from correspondence, Parke, Baron, said:
"The law I take to be this: that it is the duty of the court to
construe all written instruments. If there are peculiar expressions
used in the instrument, which have, in particular places or trades,
a known meaning attached to them, it is for the jury to say what is
the meaning of those expressions, but it is for the court to decide
what is the meaning of the contract."
Contracts are frequently made by correspondence between the
parties, and in such a state of the evidence it was held, in the
case of
Begg v. Forbes, [
Footnote 7] that the question was exclusively for the
court; Jervis, C.J., remarking, "Surely the construction of written
documents is for the judge, whether many or few in number."
Exceptional cases arise where the contract rests partly in the
correspondence and partly in oral communications, in which it is
held that the question whether or not there is a contract is a
question for the jury. [
Footnote
8] Courts of justice, however, are not denied the same light
and information the parties enjoyed when the contract was executed,
but they may acquaint themselves with the persons and circumstances
that are the subjects of
Page 84 U. S. 143
the statements in the written agreement, and are entitled to
place themselves in the same situation as the parties who made the
contract, so as to view the circumstances as they viewed them, and
so to judge of the meaning of the words and of the correct
application of the language to the things described. [
Footnote 9]
Proof of service at the request of the defendant was full and
uncontradicted, and the circuit court instructed the jury that the
plaintiff was "entitled to recover in the case such sum as the
reasonable
quantum meruit value of his services, upon the
evidence, you may regard to be proper," adding that the
instruction
"includes a consideration by you of what his services were, the
entire scope of the trade, and his qualifications for those
services at the time he rendered the same, in reference"
to that voyage, and the consideration of how much those services
were in bulk or in value before the close of the year, and the
consideration of his services after that date, and whether they are
to be diminished after by any payment or allowance which ought to
be charged against the plaintiff on account of any compensation he
may have received as a member of the firm to which he belonged; and
stating, in conclusion, to the effect, that the court left the
whole case to the jury as a question of fact for their
determination.
Most of the other exceptions to the charge of the court are
shown to be without merit, by that instruction, which submitted the
whole evidence to the jury.
Beyond all question the plaintiff was entitled to interest from
the commencement of the suit, and it is not perceived that there is
any error in the rule prescribed as to the rate, as it is the rule
of the
lex fori, especially as no rate is fixed in the
contract and no place designated for its performance.
Separate examination of the numerous other exceptions as to the
ruling of the court, in admitting and rejecting evidence, will not
be attempted, as none of them are of any
Page 84 U. S. 144
general importance. Suffice it to say they have all been
examined and the court is of the opinion that they must severally
be overruled, and that there is no error in the record.
Judgment affirmed.
MR. JUSTICE STRONG dissented from this judgment and from the
preceding opinion respecting the construction and legal effect of
the written agreement between the parties.
MR. JUSTICE HUNT also dissented.
[
Footnote 1]
1 Clifford 158.
[
Footnote 2]
66 U. S. 1 Black
506.
[
Footnote 3]
This count was ruled out and abandoned at the trial.
[
Footnote 4]
Foster v. Goddard, 1 Clifford 158, 183;
Same Case, 1
Black 506-514.
[
Footnote 5]
Curtis v.
Fiedler, 2 Black 478.
[
Footnote 6]
Levy v.
Gadsby, 3 Cranch 186;
Bliven
v. N. E. Screw Co., 23 How. 432;
Etting
v. Bank, 11 Wheat. 75;
Barreda
v. Silsbee, 2 Black 168.
[
Footnote 7]
30 English Law and Equity 508.
[
Footnote 8]
Bolckow v. Seymour, 17 C.B.N.S., 107;
Barreda
v. Silsbee, 2 Black 168.
[
Footnote 9]
Shore v. Wilson, 9 Clarke & Finelly 569; Addison on
Contracts 846;
Blossom v. Griffin, 13 N.Y. 569;
O'Neill v. James, 43
id. 84-92.
