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
MR. JUSTICE WASHINGTON delivered the opinion of the Court, and
after stating the case, proceeded as follows:
The first point reserved in the court below and on which the
judges of that court were divided in opinion consists of two
propositions:
1. That, upon the whole evidence, the three letters particularly
referred to constitute a special agreement investing the plaintiff
with the agency of Hart's lands in Ohio.
2. That this special agreement was open and subsisting at the
time the cause of action is claimed to have arisen, which precludes
the plaintiff from recovering in this action.
It is not easy to understand what the defendant's counsel mean
by the whole evidence. Upon examining the voluminous record sent up
to this Court, we find that an active correspondence was carried on
between Perkins and Hart from the year 1803 to 1816 upon the
subject of Hart's
Page 24 U. S. 246
lands in Ohio, the payment of the accruing taxes on them,
examining, surveying, and preparing them for sale, and of other
services to be performed by Perkins in some way or other connected
with those lands. If this be the evidence alluded to, there was no
objection to submitting it to the court to say whether the whole of
this written evidence, or any part of it, created a special
contract, investing Perkins with the agency of Hart's land.
But we find in this record evidence of a different character,
such as accounts, receipts, and depositions, in relation to
Perkins' agency respecting Hart's lands in Ohio. If this was
intended to constitute a part of the whole evidence upon which the
question of law was to arise, we should be of opinion that it was
fit only for the decision of the jury, and ought not to have been
submitted to the court.
The disinclination which this Court has always evinced to send
parties back to the court below if, by any reasonable construction,
obscure parts of the record can be explained disposes us in the
present instance to consider the verdict as referring to the
written evidence, not only because it would have been improper to
call upon the court to decide upon the effect of parol evidence,
but because that which is spread upon this record has no apparent
relevancy to the question of law which is submitted.
In the examination of the question whether there was a special
agreement or not, we shall confine ourselves entirely to the three
specified
Page 24 U. S. 247
letters, because we are of opinion, after an attentive perusal
of all the others, that they furnish not the slightest ground for
saying that any agreement was entered into which invested Perkins
with the agency of Hart's lands. The letters addressed by Hart to
Perkins treat him as an agent empowered to perform a variety of
acts in relation to the lands of the former. But it was a limited
agency created for particular purposes and as occasions required,
but founded upon no special agreement which bound Perkins to
perform any specified duties or Hart to remunerate the services he
might perform otherwise than the law bound him upon the principle
of a
quantum meruit. The particular agency which the
former was requested from time to time to assume, was to pay taxes,
attend to law suits, examine the lands so as to enable Hart to
judge of their value, and to have certain lots and townships
surveyed as preparatory to a sale of them at a future period. The
taxes were annually paid and other advances made by Perkins upon
which he charged both a commission and interest, and these, it
would seem, were punctually reimbursed when drawn for, although the
charge of interest was sometimes complained of.
The preparatory steps for bringing these lands or certain
portions of them into the market having been taken, the
correspondence commenced which is particularly referred to in the
first and second reserved points.
In Hart's letter of 14 January, 1812, he requests Perkins to
give him his most favorable
Page 24 U. S. 248
terms of agency, to appoint sub-agents to do business where he,
Perkins, might judge necessary, with such compensation as he might
agree upon with them. The letter then proceeds as follows:
"State the amount of commissions you shall expect me to pay on
amount 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 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 answer to this letter, Perkins writes, on 10 February, 1812,
as follows:
"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
Page 24 U. S. 249
for lands, &c., three percent commission, to be received
either in contracts here or lands here at retail price. Always, as
far as practicable, receive commissions in that which shall be
similar to that in which it is charged."
The letter from Hart to Perkins, dated 9 March in the same year,
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."
These letters, we think, constitute a special agreement upon the
subject of commissions to be paid by Hart to Perkins by way of
compensation for his agency in the sale of lands. It is confined to
that subject only. The first of these letters invites Perkins to
state his most favorable terms of agency in the sale of Hart's
lands. The answer contains those terms by stating the commissions
which he should expect to receive upon sales made, and the amount
collected and remitted upon sales made, and then abandoned by the
purchaser after a partial payment of the purchase money; upon sales
made but the amount not collected before the agency should be
closed; and finally upon sales made by way of exchange for other
property. The acceptance of these terms is sufficiently expressed
in Hart's reply to this letter, by which he commits
Page 24 U. S. 250
to Perkins the agency of his property, the nature of which
agency is too clearly explained by reference to the two preceding
letters to leave the slightest doubt as to the meaning and extent
of the contract which was thus entered into.
The second proposition is "That this special agreement was open
and subsisting at the time the cause of action is supposed to have
arisen." Now this proposition involves a mixed question of law and
fact. If the contract was open and the action was founded on that
contract, then the legal consequence insisted upon, "that Perkins
cannot recover in this action," undeniably follows. But whether in
point of fact it was open when the cause of action is claimed to
have arisen -- that is, in the lifetime of W. Hart -- must depend
upon the evidence in the cause, of which the jury were alone
competent to judge. If the agreement was wholly performed by the
plaintiff during the lifetime of Hart; if its further execution was
put an end to before its completion by the act of Hart or by the
agreement of both parties, then the plaintiff was not precluded
from recovering in this action. Nay, further, if the contract was
fully performed in relation to any one subject covered by it -- as
for example by the sale, collection, and remittance of the purchase
money for any one township or parcel of land -- the plaintiff might
well maintain an action of
indebitatus assumpsit for his
stipulated compensation in cash on that transaction, and was not
bound to wait until all the lands to which his agency extended were
disposed of. Where the
Page 24 U. S. 251
agreement embraces a number of distinct subjects which admit of
being separately executed and closed, it must be taken
distributively, each subject being considered as forming the matter
of a separate agreement after it is so closed. If, for instance,
the agreement between a merchant and his factor be that the latter
shall sell and remit the proceeds of all cargoes which the former
shall consign to him upon a stipulated commission, it can hardly be
contended that the factor cannot recover his commissions in this
form of action upon the proceeds of a single cargo which have been
remitted while there remain other cargoes yet undisposed of.
But whether this agreement was wholly closed or whether any one
or more of its parts were closed in either of the ways
above-mentioned or in any other way was a fact resting altogether
upon the evidence, whether written or parol, which was or might be
laid before the jury. It belonged exclusively to that body to say
whether the fact existed or not, and upon the fact so found the
question of law would fairly arise. In this respect, therefore, we
are of opinion that the verdict is clearly defective, and ought to
have been set aside by the court below.
It may not be amiss to add that if the question reserved were
whether the agreement was open and subsisting at the time this
action was brought, we should be of opinion that the agency of
Perkins having terminated by the death of Mr. Hart, the further
execution of the agreement was put an end to by that event, and
that consequently
Page 24 U. S. 252
it was not open when the action was brought. But the proposition
is so stated as to refer to a period antecedent to the death of
Hart.
The second point reserved is thus expressed. "That, upon the
whole evidence, Hart's letter of January 14, 1812," and so
referring to the other two letters as in the first point,
"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 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."
It has been already stated that the three letters particularly
referred to in this point did constitute a special agreement upon
the subject of commissions to be paid to Perkins by way of
compensation for his agency in the sale of Hart's lands. And it may
be added that this agreement settles the subjects upon which
Perkins was to receive compensation and the amount of that
compensation. If so, there can be no question but that the legal
operation of this agreement, as to every claim founded upon it, is
to preclude Perkins from recovering any compensation which is not
consistent with the terms of that agreement. For although in the
cases before stated, in which the special agreement has been
executed, or otherwise closed, a general
indebitatus
assumpsit may be maintained, it is nevertheless true that the
special agreement may
Page 24 U. S. 253
be given in evidence by the defendant for the purpose of
lessening the quantum of damages to which the plaintiff is
entitled.
But after all this is admitted, the inference of law insisted
upon by the defendant that Perkins is precluded by the special
agreement from claiming compensation for anything done in the
execution of his agency except according to the terms of that
agreement does not follow. The agreement is clearly prospective,
and is confined to the single subject to commissions on the sale of
lands. This is apparent from Hart's letter of 14 January, 1812,
which he prefaces by stating that he had concluded to offer certain
portions of his lands for sale at that time and his other lands
when they should be partitioned. He desires Perkins, as his agent,
to make the necessary previous arrangements and to proceed in the
sale of the portions before mentioned, and of No. 2. in the 13th
range, as soon as the partition should be completed, and then he
proceeds to inquire his terms of agency as before mentioned. But
when we look into the whole evidence to which we are referred by
the point reserved, it is found that the agency of Perkins
commenced as early as the year 1803 and extended to a variety of
duties unconnected with that of selling land, such as exploring the
lands of his principal, having them surveyed, their quality and
value ascertained, investigating titles, attending to law suits,
paying taxes, and making other advances.
Now it is impossible to contend with any
Page 24 U. S. 254
probability of success that Perkins was precluded by the special
agreement from recovering, under the general counts, a compensation
for those services or, indeed, for any other services rendered by
him in his character of agent which are not strictly within the
scope of the special agreement. But the point raised here is that
he is precluded from claiming compensation for anything done in the
execution of his agency except according to the terms of that
agreement, although the services so rendered are not embraced by
it.
What was the nature of the particular claim submitted to the
jury upon which the parties consented that a verdict should be
given for the plaintiff the record does not enable this Court
distinctly to decide. So far as any information is to be derived
from the declaration and the additional bill of particulars, it
would rather seem as if it was for general services rendered by the
plaintiff without the scope of the special agreement, that being
confined, as before observed, to commissions on land sales.
If the paper found in this record, headed thus, "Perkins'
account, on which the action is brought," which contains three
items for commissions on as many sales of land, and three others
for interest on those commissions, is to be considered as the
original bill of particulars filed in the cause, it would seem to
follow that the action was brought to recover as well those
commissions as a compensation for general services not embraced by
the special agreement.
Page 24 U. S. 255
Upon this state of the case, the conclusion of law insisted upon
in this point would nevertheless be incorrect for the reasons
already stated.
It was contended by the counsel for the defendant that this
action would not lie in a case where, by the agreement, the
plaintiff was to be compensated in land. This is not controverted.
But it will be sufficient to observe that it is not stated in the
points reserved or in the account just referred to (if it be
admitted to be the original bill of particulars) that the
commissions there charged arose upon an exchange of lands or were
to be discharged by land. The case is too imperfectly stated to
enable this Court to say that it gives rise to the question to
which the argument is directed.
The third and last point reserved is thus expressed:
"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 on 19 March, 1816, 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."
The difficulty of this point consists in the imperfect manner in
which it is stated. The court may conjecture that the bill of
particulars alluded
Page 24 U. S. 256
to is the paper just referred to, but whether it be so or not is
by no means certain. If it be the bill intended, the difficulty
still remains, as the general account is not stated or referred to
so as to enable the court to decide whether it does or does not
include the two items which it is supposed cannot be recovered in
this action.
If we look through this record in order to obtain information
respecting this matter, we meet with two accounts containing
charges for advances made by Perkins in the years 1814 and 1815 for
taxes due by Hart and in discharge of other expenses connected with
his agency, both which accounts were discharged. But it surely
cannot be contended that the settlement and discharge of an account
for money lent and advanced for the use of the testator is a bar to
a claim for commissions or of any other demand not included in the
settled account. 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 mistake in law or in fact, and
if it be confined to particular items of account, it concludes
nothing in relation to other items not stated in it.
Page 24 U. S. 257
The legal conclusion, therefore, insisted upon by the defendant
that the plaintiff is precluded from recovering in this action for
the two items claimed to have been due before the two accounts
spoken of were rendered is not correctly drawn unless it appeared
from the point reserved that those two items were included in what
is styled the account stated.
It may further be remarked that even if it appeared that the
plaintiff was precluded by the settlement and discharge from
recovering the amount of the two items referred to, it would not
follow that the law is for the defendant upon the whole verdict,
although it might be sufficient to induce the court below to grant
a new trial if it had been applied for upon the ground that the
verdict was for too much.
Were this cause before the Court upon a writ of error, the
imperfections in the points reserved which have been noticed would
render it proper to reverse the judgment and to direct a
venire
de novo to be awarded. Being an adjourned case, it would be
improper for this Court to give any such direction to the court
below.
CERTIFICATE. This cause came on to be argued on the certificate
of division in opinion of the judges of the Circuit Court for the
District of Ohio. On consideration whereof this Court is of opinion
that the points reserved, upon which the opinions of the judges of
that court were opposed, are too imperfectly stated to enable this
Court to pronounce any opinion upon them.
