Coker v. Ropes

• Decision Date: 29 November 1878
• Citation: 125 Mass. 577
• Parties: John J. Coker v. George Ropes
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 577

John J. Coker v. George Ropes

Supreme Court of Massachusetts

November 29, 1878

[Syllabus Material] [Syllabus Material]

Essex. Contract to recover one year's salary at $ 2000, upon an agreement under seal, by the terms of which the plaintiff was to act as the agent of the defendant at port or ports to the eastward of the Cape of Good Hope, in the Zanzibar trade. The agreement contained the following clauses: "Said Coker will to the best of his ability execute such orders as he may receive from said Ropes in the pursuance of said Zanzibar trade." "This agreement is to continue in force for one year from December 2, 1874, and thereafter until a reasonable and proper notice is given to the other of a desire to terminate this agreement. It is also agreed by said Ropes to pay to said Coker, during the continuance of this agreement, a salary at the rate of $ 2000 per annum for the time said Coker is employed," in monthly installments to commence December 2, 1874.

The answer admitted the making of the agreement, but alleged that the plaintiff had not executed the orders received from the defendant, and had not faithfully performed his contract; and that damage was thereby caused to the defendant.

The case was referred to an auditor "to state the accounts between the parties, and to make report thereof to the court." The auditor's report stated that the plaintiff was employed in the defendant's service for nine months, when he was discharged by the defendant; that while so employed, he received from the defendant full and minute instructions in writing as to the conduct of the business, which he disobeyed; "that the plaintiff, by his neglect and disobedience of instructions and failure to execute orders as given, forfeited his right to a continuance of the contract and to a recovery for the full amount of the salary as claimed by him;" that, for the time he was in the defendant's service, he had been paid, according to the terms of the contract, all but the sum of $ 120.29; that the defendant had sustained losses, by the neglect and refusal of the plaintiff to obey orders, to a greater amount than this sum; that "the defendant is entitled to recoup the same in this action to the amount of the balance remaining unpaid upon the plaintiff's claim in this action, and that there is nothing due from the defendant to the plaintiff."

In the Superior Court the plaintiff objected to the auditor's report upon the following grounds: "1. That the auditor, in addition to stating the accounts between the parties, had also passed upon the legal rights of the plaintiff under his contract, to wit, that he has forfeited his right to a continuance of the same and to a recovery of a full amount of salary as claimed by him. 2. That the auditor passed upon the legal construction of the contract, in limiting the time stated therein that the plaintiff was in the defendant's service. 3. That the auditor finds that the defendant is entitled to recoup in this action, which is purely a question of law. 4. That the report is in substance, aside from the statement of the accounts, a legal conclusion upon the summary of the facts found by the auditor." The plaintiff also moved the court to reject the parts of the report referred to, as not being competent evidence for the jury, on the ground that the auditor had exceeded his authority in passing upon the same. But Brigham, C. J., overruled the motion, and ruled that the auditor had not exceeded his authority in passing upon the matters objected to, under the rule of reference.

The plaintiff testified that he arrived at Zanzibar about January 9, 1875; that before leaving this country, and on his way to Zanzibar, he received instructions from the defendant; that he received an order to purchase one hundred bales of cloves but could not fill the same except by purchasing more than the order called for; that in reference to a shipment of ivory, he was unable to obtain the quantity of the quality needed and called for by the instructions; that he drew letters of credit upon Baring Brothers, (which, by the instructions, he was to do only in the event of his not being able to borrow money of a certain banker at nine per cent.,) and shipped a cargo of produce to...