Bomeisler v. Dobson

• Decision Date: 29 February 1840
• Citation: 5 Whart. 398
• Parties: BOMEISLER and Others v. DOBSON.
• Court: Pennsylvania Supreme Court

5 Whart. 398

BOMEISLER and Others v. DOBSON.

Supreme Court of Pennsylvania.

February 29, 1840

IN ERROR.

1. Where the terms of a special agreement have been performed by the plaintiff, and nothing remains but the mere duty on the part of the defendant to pay money, the plaintiff may recover on the common money counts in assumpsit.

2. Where the evidence of an agreement is both written and parol it is not error for the Court to leave to the jury the question of the intention of the parties.

ERROR to the District Court of the City and County of Philadelphia.

On the return of the record it appeared, that Robert Dobson brought an action on the case in that Court against Louis Bomeisler and Mitchell Bomeisler, late trading under the firm of Bomeisler & Brother, and George Peterman who survived Jacob Peterman, late trading under the firm of Jacob & G Peterman.

The declaration contained five counts, viz. 1st, For money had and received; 2d, Money paid, & c.; 3d, Goods sold; 4th Work and labour done; 5th, On an account stated.

The defendants pleaded non-assumpsit, and payment, and set-off and on these issues the cause came on for trial before STROUD, J., on the 3d of May, 1839, when the plaintiff offered in evidence the following agreement, which was signed by the parties.

" Agreement made this day between Bomeisler & Brother and Jacob & G. Peterman on the one part, and Capt. Robert Dobson on the other part.

Bomeisler & Brother and Jacob & G. Peterman have this day given the brig Mary under the command of Captain Robert Dobson, and also consign the cargo shipped on board by them, amounting to $7,782 82, to Captain Robert Dobson, to proceed from hence to Samana, there to dispose of the cargo for account of the concerned, and to make remittances in the same vessel as sales shall proceed, unto Jacob & G. Peterman and Bomeisler & Brother, to each one half of the proceeds, or as near as possible.

Captain Dobson binds himself to have a regular set of books open at Samana, of sales, returns, disbursements, and all expenses that may occur; furnishing accounts from time to time, as circumstances will allow. It is understood that Captain Dobson makes no charge of commission on the sales, but that his expenses and that of the vessel be paid by Jacob & G Peterman and Bomeisler & Brother; and as long as Captain Dobson shall have command of the vessel or remain at Samana on this business, forty-five dollars per month be allowed him.

In case Captain Dobson remains at Samana and the vessel returns, he shall act as ship's husband there.

All and every business conducted or done at Samana, the parties composing this agreement shall be interested in, in equal proportions.

No privilege whatever to be allowed to either party, either on the vessel or cargo.

Nothing whatever to be sent out, or received in return, without the consent or for the interest of all parties concerned.

Should any consignments be made to Captain Dobson at Samana, it shall be with the consent of all parties; and all commissions, & c. arising from such consignments, to be equally divided between the parties composing this agreement.

Should Captain Dobson find it advantageous to the business, to give an interest in it to any person at Samana, he shall be allowed to do so in equal proportion with all parties."

The defendants' counsel objected to the admission of this paper, on the ground of variance from the declaration, but the objection was overruled, and exception taken.

The plaintiff then gave in evidence certain letters from the defendants to him, between the 30th of March, 1829, and the 6th of August, 1830; and then closed his case.

The defendants then produced one Andrew Garrett, who testified as follows: " I was clerk and book-keeper of the parties, plaintiff and defendants, at Samana. I went out with the plaintiff, January 1829, and returned in May 1830, and went out again soon after. The plaintiff told me at Samana that he was equally interested with the Petermans--not with the Bomeislers--in the first shipments, and also in the second and third. He said so more than once, twice, or three times. That the defendants had no business to be giving him orders; that he was equally interested; and would do as he pleased. The books produced by the plaintiff here, are not all the books kept at Samana. There were in all three shipments to Samana. The first about eight thousand dollars, the second about one thousand, the third about fifteen hundred dollars."

The following agreement, executed by the parties, and under their seals, was then given in evidence by the defendant.

" Articles of agreement made and agreed upon between Bomeisler & Brother, George Peterman, Jacob Peterman and Robert Dobson, owners of and shippers in the brig Mary, of the city of Philadelphia, of the one part, and Andrew Garrett, of the same place, of the other part, witnesseth: That the said Andrew Garrett, for the consideration hereinafter mentioned, doth hereby for himself, his executors and administrators, covenant, promise and agree to, and with the said Bomeisler & Brother, George Peterman, Jacob Peterman and Robert Dobson, their executors, administrators and assigns, by these presents, that he, the said Andrew Garrett, shall and will, when required by the said Bomeisler & Brother, George Peterman, Jacob Peterman and Robert Dobson, go on and with the brig Mary for Samana, and immediately on his arrival there, will enter into the service of the said Bomeisler & Brother, George Peterman, Jacob Peterman, and Robert Dobson, for and during the term of nine months, and from time to time, as may be agreed upon hereafter, to be accounted from the first day of January, A.D. one thousand eight hundred and twenty-nine. And the said Andrew Garrett shall and will continue and abide at the aforesaid Samana or elsewhere, and shall and will diligently and faithfully serve during the said time, in keeping the books of accompts, or any other business wherein they, the said Bomeisler & Brother, George Peterman, Jacob Peterman, and Robert Dobson may employ him in their trade and merchandizing; and they the said Bomeisler & Brother, George Peterman, Jacob Peterman and Robert Dobson do hereby promise and agree to and with the said Andrew Garrett, his executors and administrators, to pay him the sum of twenty-five dollars per month, with boarding and lodging, to the full end and term of nine months; provided he faithfully attends to the duties hereinbefore mentioned. And it is hereby agreed upon between the parties, that if the said Bomeisler & Brother, George Peterman, Jacob Peterman, and Robert Dobson, their executors, administrators, or assigns, shall have no further use or employment for the said Andrew Garrett, after the expiration of said time, (provided their business should so long continue,) that then, and in such case, the said Bomeisler & Brother, George Peterman, Jacob Peterman, and Robert Dobson, their executors, administrators or assigns, that they, or either of them, after two months' notice or warning in writing for that purpose given, shall and may discharge the said Andrew Garrett from their service, paying him for his services up and in full to the time of his discharge, and provide him a passage to Philadelphia; and if the said Andrew Garrett shall wish to change his situation, or leave the service aforesaid, after two months' notice or warning in writing for that purpose given, shall and may leave their service, they paying him up and in full to the end of his services. In witness whereof, the said parties have hereunto interchangeably set their hands and seals, this first day of January, A.D. one thousand eight hundred and twenty-nine."

The defendant further gave in evidence a bill of sale by Jacob Peterman of one-fourth of the brig Mary to Robert Dobson in consideration of six hundred and four dollars, dated the 2d of January, 1829: and certain accounts-current between the parties, and accounts-sales rendered by the plaintiff.

The learned judge charged the jury as follows.

" The claim of the plaintiff is for his services in disposing of certain goods, shipped by the brig Mary, in the year 1829 from this port to Samana, in the island of St. Domingo. The value of these services is fixed by him at forty-five dollars per month; and he alleges that he was employed twenty-three months. A claim so simple in its character, one would naturally suppose, would be capable of easy proof: for the departure of the brig might be readily ascertained; and the return of Captain Dobson was not likely to have been a secret. And yet the parties have contrived so to complicate the proof, that after so great a lapse of time, the real truth of the case, I apprehend, cannot be brought to the knowledge of a judicial tribunal, consistently with the wholesome rules by which such a tribunal is governed. Still, though the search of the truth may be hopeless, yet your duty is to deal with the evidence, to find out its proper results, and applying these as the test, bring in your verdict accordingly. Now what is the character of this case according to the evidence? The evidence consists of, 1st, The agreement of January 2d, 1829. 2d, Agreement with Andrew Garrett of January 1st, 1829. 3d, Oral testimony of Andrew Garrett. 4th, Bill of sale of part of the vessel, from Peterman to Dobson. 5th, Accounts rendered by the plaintiff. 6th, And the letters of the parties. Your task is to extract from this mass as a whole, its proper result, having reference to the issue between the parties.

The agreement of January, 2d, 1829, styles the plaintiff one party, and the defendants together as the other party; treats the first shipment as the property of the defendants, exclusive of Captain Dobson, and Captain...