Currier v. Robinson's Estate
| Citation | 18 A. 147,61 Vt. 196 |
| Parties | JOHN W. CURRIER v. LUCIUS ROBINSON'S ESTATE |
| Decision Date | 12 July 1889 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, OCTOBER, 1888. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
This was an appeal by the plaintiff 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. Pleas, the general issue and statute of limitations. Trial by jury at the September Term, 1886 Ross, J., presiding. Verdict for the defendant. Exceptions by the plaintiff.
The other exceptions taken were not insisted on in the argument. We find no reversible error in the trial and the judgment is affirmed.
Dickerman & Young, for the plaintiff.
As stated in the briefs of counsel on both sides, the main controversy in this case was whether or not the intestate, Lucius Robinson, was in his life time a silent partner in the firm of Foster & Baker and as such partner liable to the plaintiff for materials furnished and labor performed by him for the firm. The written agreements were important evidence bearing on this question. In considering the matter of their construction it is necessary to understand how the case had proceeded prior to their production in evidence and what they were intended to operate upon. It is stated in the second paragraph, page third of the exceptions, that it appeared that it was in the first instance agreed between these three parties that the contract should be taken in the name of Foster & Robinson, but, as Robinson was a director in the Missisquoi and Clyde Rivers railroad corporation and president thereof, so that he could not appear as contractor, it was suggested that Baker's name be substituted for his and that it was so done with the assent of all three. Here is certainly a strong indication that Robinson was interested in the contract, although his name did not appear therein for the reason stated. Baker testified positively that the three were equally interested. In paragraph second on page second it is stated that it appeared from the testimony of Baker, which testimony was not contradicted, that, "before the formation of this arrangement between these three parties an understanding had been arrived at," etc., and in the next paragraph it is said that it appeared "that after said arrangement had been entered into between these three persons and the work in Richford begun under it, Foster became dissatisfied with it and refused to go on unless some new understanding could be arrived at between them by which he should be sole owner of the M. & C. R. railroad when completed, and that such negotiations were had in the premises that the relations of the said three persons were adjusted on a new basis," etc. We infer from what the court said to the jury, as appears on the thirteenth page of the exceptions, that it was practically conceded by defendant's counsel that but for the written agreements the case showed Robinson to be a contractor and liable to the plaintiff for the amount of his specification.
Assuming that the three were co-partners up to the time of the execution of the agreements the court should have instructed the jury what effect the agreements had upon the partnership. In the submission of the agreements to the jury for their construction there was error. We cannot assume that the jury construed the agreements correctly, for if they found an original partnership and a dissolution thereof by the written agreements, non constat they may have found that the three parties subsequently became co-contractors as to the plaintiff. If, however, the legal effect of the agreements was to dissolve the then existing partnership it was error that did not harm the plaintiff. Upon a careful examination of the agreements we can give them no other reasonable construction than that the "new basis" upon...
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