Fine v. Rogers

Decision Date31 October 1851
PartiesFINE v. ROGERS.
CourtMissouri Supreme Court

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action, instituted under the new Code, November 17th, 1849. The plaintiff, Fine, sets forth in substance that on the 13th day of February, 1849, a contract was made between him and William Atkinson, whereby he was to serve as pilot and on particular occasions as captain of the steamboat Sacramento in the Missouri river trade, from the 12th day of March, 1849, to the 1st day of November, 1849, at the wages of $200 per month and that if the boat should be lost, the contract to cease, and if she should be engaged in another direction, then Fine to do like service on any other boat running in the Missouri river, that the master of the Sacramento should direct. That at the time of the making of the contract, Atkinson was master and part owner of said boat, and said Rogers was part owner; that he, Fine, had been always ready and willing and offered to perform his part of the contract, but defendant since September 1st, 1849, refused to accept his services, and would not permit him to serve, and without any just cause to his damage of $300, which he claimed as due and owing him. Defendant considered that about June 20th, 1849, Fine expressly waived the contract and requested the owners of the boat to release him, and he was released and went into the employment of others, and thereupon the owners of the boat employed another person and admits that Fine afterwards tendered his services, but they were rightfully refused, &c.

On the trial the evidence was the contract, as set forth in the petition, and defendant read in evidence the deposition of one Maline who testified in substance as follows: That while the boat was laid up in the latter part of June, or first of July, he asked Fine what he meant to do with his contract, remarking, that it was due to the owner, that he should put in his time somewhere else. Fine replied that he was in treaty with the steamboat Munroe and if he effected an engagement with her he would give up his contract with the Sacramento; that the Munroe would be in port in a few days, and he then would know. About July 10th or 15th, Fine came into the office of Alfred Rogers & Co., and said he had effected his engagement with the Munroe and would relinquish his contract with the Sacramento, at the same time asking witness to pay his bill then presented, which he refused to pay, because he had no funds of the steamboat in his hands, telling Fine that Rogers would in a few days be in town, and he had better see Rogers about it. Some few days after he again met Fine and Fine told him that Rogers declined paying his bill because he had no money of the boat on hand, remarking (he Fine) that it did not make much difference, as his contract with the Sacramento was better than with the Munroe, he (witness) then understanding that Fine was on the Munroe. He distinctly understood in the conversation about the bill that Fine would give up the contract if he made one with the Munroe; he (witness) was then acting for Alfred Rogers & Co., who were owners in the boat; he paid several claims for the boat, received money for the boat, and paid it out on its order. There was then no representative of the boat except himself in the city; is now clerk on the Sacramento. On cross-examination he said that at the time Fine handed in his bill he was clerk in Rogers & Co.'s office at St. Louis; from Joseph & John Rogers, surviving partners of Rogers & Co., he had power to transact any business for them. Their business at St. Louis was that of commission merchants. Alfred remained in St. Louis and the others in Cincinnati; witness was their book-keeper for about one year since the death of Alfred. John had been at St. Louis and gone away; he had no special power to sell the boat, run her or contract for crew and officers and discharge them; he never undertook to do either, and was never requested to do either, but he had paid hands on the order of the clerk of the boat. Fine did not state to him as a condition to his relinquishing his contract, that his bill as rendered, should be paid; at the time he told him that Rogers declined paying his bill he said he should hold on to his contract as he would make $1,000 more than by his supposed arrangement with the Munroe; he had heard stated the contract substantially with the Sacramento, but thinks he never read it; he was present when Capt. Atkinson stated the terms of it to Alfred Rogers before it was made. John & Joseph Rogers continue to own interests in the boat; about ten days after Fine handed in his bill, he handed it to John Rogers; the boat began running the Missouri river again about September 12th, and paid her pilots $150 a month each; he has been clerk on her ever since she began running. On re-examination he said that he had received from John Rogers instructions to pay off all hands and lay the boat up as soon as possible; also to receive any money in the hands of the clerks and take the books; he was aware of Fine's contract when Fine handed in his bill.

This was all the evidence. Defendant's counsel demanded that he might conclude to the jury, which the court refused, to which decision of the court defendant excepted. 7 Mo. R. 509.

The following instructions were given by the court: 1. If the jury believe from the evidence that the plaintiff's statement to the witness Maline on presenting his bill that he relinquished the contract was made on the condition that his bill was paid, then such statement was not a relinquishment. 2. The plaintiff is entitled to recover in this case unless the defendant proved that he refused to act under the contract or released it. 3. In order to make a relinquishment of the contract by the plaintiff to be valid it must be proved by defendant that it was made to a person competent to agree to it and assent to it and that such person did assent to it and accept it or that the plaintiff refused to act farther under the contract, and acceptance of the relinquishment may be proved directly or by circumstances. 4. If the jury believe from the evidence that plaintiff's statement to Maline about relinquishing the contract was made in connection with the payment of his account, and depended upon that, and that the payment of his account was refused and that the plaintiff said he would hold on to the contract, in that case plaintiff is entitled to recover. 5. If the jury believe from the evidence that the plaintiff agreed to rescind the contract and acted in that agreement with the assent and acquiescence of the defendant, there can be no recovery by plaintiff on the contract for services offered to be earned by plaintiff after that time. To the giving of the above instructions defendant excepted.

At the request of defendant the court gave the following instructions, to-wit: 1. An unsealed contract can be rescinded by agreement of the parties whether there be consideration or not while it is executory. 2. If the parties agree to rescind the contract and acted on that agreement, the plaintiff cannot recover for services offered to be earned by him under said contract after that time.

The following instruction, asked by defendant, the court refused to give, and the defendant excepted to such refusal: If the jury believe from the evidence that the plaintiff agreed to rescind the contract and announced his intention to defendant or his agents and then acted on this instruction and agreement by going on another boat and that such his actions and course was acquiesced in and assented to by plaintiff on the contract given in evidence for services earned or offered to be earned after that time.

The verdict was for defendant in error. The plaintiff in error filed a motion for a new trial, which was overruled, and Rogers appealed to this court.

SPALDING & SHEPLEY, for Appellant.

I. The third instruction asked by defendant below should have been given. 1. An unsealed contract can be rescinded by the parties to it while it is executory. In 9 Mass. R. 84, the court say “all executory contracts may be rescinded by the parties to them,” &c., and the acts and declarations of the parties in that case were evidences showing it had been rescinded. 4 N. Hamp. R. 196, an executory agreement in writing not under seal, may before breach be discharged and abandoned by a subsequent unwritten agreement. Chitty on Contracts, 602: “A contract not under seal, whether verbal or written may before breach be discharged by parol.” 12 Vermont R. 625, Blood v. Enos, to the same purport and the jury are to judge. 2. And the acts and declarations of the parties are evidence of such rescinding or release of the contract. 3. This instruction wisely hypothetically states the fact and then authorizes the jury to draw the inference as to whether a release or agreement to rescind existed, and then declares the law on such inference being deduced by the jury.

II. The third instruction given for plaintiff below is erroneous, in that it declares a relinquishment or release of the contract would be made only to a person competent to agree and assent to it. This would be understood by the jury as a declaration that the transactions and interviews set forth in the evidence could not amount to a release, or did not sufficiently prove one. The authorities show the relinquishment or release, from acts and conduct of the parties.

III. The court below prohibited ...

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