Currier v. Robinson's Estate

• Decision Date: 12 July 1889
• Citation: 61 Vt. 196,18 A. 147
• Court: Vermont Supreme Court
• Parties: CURRIER v. ROBINSON'S ESTATE.

18 A. 147

61 Vt. 196

CURRIER

v. ROBINSON'S ESTATE.

Supreme Court of Vermont, General Term.

July 12, 1889.

This was an appeal by John W. Currier from the action of commissioners in disallowing his claim against the estate of Lucius Robinson. The declaration contained the common counts, and an account charging the estate on the ground that the said Lucius Robinson was a partner in the firm of Foster & Baker, contractors for the construction of the Missisquoi & Clyde Rivers Railroad. Verdict for the defendant. Exceptions by the plaintiff.

The evidence of the plaintiff tended to show that Asa B. Foster, Luther Baker, and the intestate, Lucius Robinson, were equal partners in the firm of Foster & Baker; that this firm took the contract for and did construct the Missisquoi & Clyde Rivers Railroad; and that the account sued for by the plaintiff accrued against the said firm in the construction of said railroad. The plaintiff did not claim that the intestate was liable, except as a member of that firm. The principal witness to this fact was the said Baker, who testified that it was agreed between them from the first that they were to take this contract as partners, and share alike in the profits, but that, inasmuch as Robinson was the president of the Missisquoi & Clyde Rivers Railroad Company, with whom the contract was to be made, it was mutually agreed that it should be taken in the names of Foster & Baker, and under that firm style; that the contract was so taken; and that under it the three went on and constructed the road; and that the account of the plaintiff accrued in the course of such construction.

It appeared that the Missisquoi & Clyde Rivers Railroad was the Vermont portion of a continuous line running from Newport, Vt., to Montreal, P. Q., and that the said Foster owned or controlled the Canada part. The defendant claimed that whatever might have been the original relation of these three persons, after a certain time Foster determined that they must be so adjusted that he should assume the construction of the Missisquoi road, and own it when completed for use in connection with his Canada road; and that an arrangement was made by which the previous partnership was dissolved, and Robinson and Baker both became the hired servants of Foster, Baker's name being still retained because certain moneys which were to be advanced by the Connecticut & Passumpsic Rivers Railroad Company could not be made available unless some responsible resident of the United States was one of the contractors. As evidence of this the defendant introduced two written memoranda, the execution of which at their respective dates was conceded, and which were as follows:

"We, the undersigned, being mutually interested in the Missisquoi & Clyde Rivers Railroad, hereby agree that the interests in and connected with said railroad shall be arranged and carried out as is hereinafter set forth and described. In order to insure the speedy construction of said M. & C. Rivers Railroad, it shall be mortgaged to the Connecticut & Passumpsic Rivers Railroad for the sum of three hundred and fifty thousand dollars, or such sum less as may be required to build said road. The said road shall be leased to the South-Eastern Counties Junction Railroad of Canada. Said lease to be perpetual upon the condition of paying the interest on the three hundred and fifty thousand dollars, as above, and such dividends on the stock subscribed and issued as is paid upon the South-Eastern Counties Railroad, upon a pro rata basis as to the mile on each road. It is also agreed that the contract now made and existing for a certain portion or division of said Missisquoi & Clyde Rivers Railroad with Messrs. Col. A. B. Foster and L. Baker shall be so modified, altered, or amended as to extend to the village of Newport by way of North Troy village and Newport Center, at such prices as may be agreed upon, not to exceed thirty thousand dollars per mile in money, town bonds, and stock, all included. All stock transferred to Messrs. Foster & Baker on account and for the payment of constructing said road, or any part thereof, shall be transferred by Baker to Foster, or such person as he shall designate. The South-Eastern Counties Railroad shall have the entire control of the Missisquoi & Clyde Rivers Railroad by perpetual lease, majority of stock, and such directors as may be desired by said Col. A. B. Foster, and the same to be carried into effect so soon as the arrangement is completed with the Conn. & Pass. Rivers Railroad as to the mortgage and running of business arrangements, so called, as to secure the three hundred and fifty thousand dollars for the building of the road. It is also understood and agreed that Luther Baker and Lucius Robinson shall be allowed and paid so much money as they have actually paid out for and on account of the said Missisquoi & Clyde Rivers Railroad. Said money may be paid out of the funds received from the Conn. & Pass. Rivers Railroad from time to time, in such sum or sums as may be agreed upon by said Foster, Baker & Robinson, if not otherwise provided for. It is also agreed that there may be taken out of the cash received from said Conn. & Pass. Rivers Railroad, or town bonds, or stock, as each may elect, the sum of twelve thousand dollars each by said Foster, Baker & Robinson, at such time as may be agreed upon, in such sum or sums from time to time as they may mention hereafter, the same to be done within one year from date. Should there be a move to extend said railroad beyond Newport village or to Island Pond, or any other point, said Baker & Robinson shall together have the same interests in the construction for such extension, or the profits arising therefrom, as said Foster or the South-Eastern Counties Railroad or their successors may have. In regard to the mortgage and lease of said railroad, the said Baker & Robinson shall express no preference for first of record, only that it be done to secure the funds mentioned above,—$350,000. And it is further agreed that the said Baker & Robinson shall render such aid in the construction of said road, in regard to their time and services, as may be desired by said Foster, without further charge except for cash paid out. In short, it is mutually understood and agreed that the said Baker & Robinson shall do whatever and all they can do reasonably for the cheap and quick construction of said railroad, and for the benefit generally of the said Foster, and in his interest with the road, and all its connections and workings of the same, both directly and indirectly, until such times as relieved by said Foster or those in his interests. To all of which we three persons named in the foregoing hereunto pledge each to the other to carry out the above contract in good faith, to the best of our ability. Subscribed to on the part of L. Robinson and L. Baker at Newport, this 26th day of February, A. D. 1872, and on the part of A. B. Foster, of Montreal, the 28th day of February, A. D. 1872.

"A. B. FOSTER.

"L. ROBINSON.

"LUTHER BAKER."

"Referring to a memorandum signed by the undersigned, it is hereby agreed as the final understanding that Mr. Foster and Mr. Baker are to be jointly, but not separately, entitled to draw all moneys, stocks, and bonds fulling due under any contract for the construction of the Missisquoi & Clyde Rivers Railway, and upon payment of the sums to Mr. Baker and Mr. Robinson, respectively, which are mentioned in the said memorandum, Mr. Foster shall be free from any further demands or accounting in respect of such contract of construction, in as far as regards Mr. Baker and Mr. Robinson.

"A. B. FOSTER.

"L. ROBINSON.

"LUTHER BAKER.

"March 2, 1872."

The court did not construe these written instruments, but submitted them to the jury as follows: "Well, gentlemen, you are to remember that this is a thing of considerable length of standing. It is conceded by Mr. Prouty for the defendant * * * that if Mr. Baker's testimony is to be believed, and full credit to be given to it, and you find the truth to be as he testifies, then the plaintiff is entitled to recover. But they say on the part of the defense that, taking this contract of February, 1872, viewing it in all its bearings, remembering the relation which these parties all sustained to the road, and all the circumstances, it shows that Mr. Robinson was not to be responsible thereafter on any of the contracts, whatever might have been his relations to it; that he was to have a stipulated sum; that he was not to appear in the contracts, and was not to be liable. That is what the defense claim. You have heard the comments upon this contract. You will have it before you. Mr. Crane has made his comments, and gone over the contract in detail, where they start off by saying that they are mutually interested. It is for you to say what they meant by that,—whether they meant that they were equally and jointly interested, or whether they meant simply that Mr. Robinson had an interest in there because he had got some money in. He had a further interest as a director, and was interested in the Passumpsic road. He had an interest as the president and a director in this road. It is pretty apparent, 1 think, taking the whole contract together, that he did not mean to say that after that contract they were going to be equally interested; because that contract, as I understand it, * * * and this is not controverted by either side, * * * puts the liability upon Mr. Foster to pay all the bills as between these three parties to it, and gives him all the profits that may accrue from the contract over and above the twelve thousand dollars which is to be given to Mr. Baker and Mr. Robinson. "

The entire account of the plaintiff accrued subsequently to the execution of the above-mentioned memoranda.

The witness Baker testified that, notwithstanding the execution of these written agreements, the three still continued partners as before. In view...