Perkins Hart Hart

• Decision Date: 02 March 1826
• Parties: PERKINS against HART, Executor of HART
• Court: U.S. Supreme Court

24 U.S. 237

6 L.Ed. 463

11 Wheat. 237

PERKINS against HART, Executor of HART.

March 2, 1826

THIS was an action of general indebitatus assumpsit, brought in the Circuit Court of Ohio, for work and labour, care and diligence, by the plaintiff done and bestowed, as an agent and attorney, in exploring, showing, surveying, and selling, the lands of the defendant's testator; also, in the searching of records, investigating titles, and in the payment of the taxes of the testator. The declaration contains the other general money counts. The plaintiff also filed what is styled an additional 'bill of particulars,'

for exploring, giving information of the situation and value, superintending law suit with Granger, attending to division with Mather's heirs, and for general superintendence of Hart's landed interest in Ohio, (except for paying taxes,) 3,500 dollars.

By consent of the parties the jury found a verdict for the plaintiff of 4,308 dollars 70 cents damages, if, upon the points reserved, the Court should be of opinion that the law is for the plaintiff; but if, upon the points reserved, the Court should be of opinion that the law is for the defendant, then they find for the defendant.

The opinions of the Judges below being opposed, the cause was removed to this Court upon a certificate of the disagreement, upon the three following points:

1. That the whole evidence, and Hart's (the testator's) letter of January 14, 1812; Perkins' (the plaintiff's) letter in reply, of February 10, 1812, and Hart's letter of March 9, 1812, in reply to Perkins, constitute a special agreement, investing Perkins with the agency of Hart's land in the State of Ohio, open and subsisting at the time the cause of action is claimed to have arisen, which precludes Perkins from recovering in this action.

2. That the whole evidence, and the letters above cited, constitute a special agreement, defining the nature and extent of Perkins' agency, and settling the subjects upon which he was to receive compensation, and the amount of that compensation; the legal operation of which

agreement is to preclude Perkins from claiming compensation for any thing done in the execution of his agency, except according to the terms of that agreement.

3. That the plaintiff cannot recover for the two items in the bill of particulars claimed and charged to have arisen as matters of account between the parties in 1814 and 1815; because, the plaintiff, on the 1st of February, 1815, and 19th March, 1819, exhibited and stated his general account against William Hart, upon each of which a balance was due from, and paid by, the said William, as a settlement upon an account stated, which precludes the plaintiff from recovering in this action for said two items, claimed to have been due before the said accounts were rendered.

In the letter of Hart (the defendant's testator) of the 14th of January, 1812, he requested the plaintiff to give him his most favourable terms of agency, to appoint sub-agents to transact the business where he (the plaintiff) might deem necessary, with such compensation as he might agree upon with them. The letter then proceeded as follows: 'State the amount of commissions you shall expect me to pay on account of sales that shall be collected and remitted, but no commissions to be paid by me till the collections are made. Provided sales are made by me in exchange for lands, and if I should draw on you for the amount to be paid in lands at a price agreed on, or otherwise, if necessary, to be left with you to be ascertained; in such

case, what should you expect to charge on sales of that nature? Please be particular in stating your terms of agency, and make them as favourable as possible.' In the plaintiff's letter, in reply, of February 10th, 1812, he says: 'My commission on sales made by me, the money collected, and remitted, is eight per cent. When contracts are made, (as is sometimes the case,) purchasers make a payment, and then give up the land so as to be left, without encumbrance, to be sold again, 50 per cent. on such receipt. On these two items the commission cash, as it has been cash received. In case the agency should be closed, and a settlement made, and contracts remain on hand unsettled, then, in all those contracts that should be carried into effect, five per cent. commission, received in contracts, with a conveyance of the lands covered by the contract or contracts received. On sales made in exchange for lands, &c. three per cent. commissions, to be received either in contracts here, on lands here at retail price. Always, as far as is practicable, receive commissions in that which shall be similar to that in which it is charged.' The letter from the defendant's testator dated the 9th of March, 1812, in reply to the plaintiff, acknowledges the receipt of the above letter, and then adds, 'Your observations in regard to the mode of selling new lands, are, doubtless, sanctioned by experience, and I am happy to commit the agency of my property to your experience and good judgment, from whence I expect to derive peculiar advantage.'- Feb. 16th.

The cause was argued in this Court by Mr. Wright and Mr. Whittlesey, for the plaintiff, and by Mr. Webster and Mr. Hammond, for the defendant.

On the part of the plaintiff it was argued, (1.) That where a special parol contract, or a written contract not under seal, has been entered into, the party may still recover on the common counts in a general indebitatus assumpsit.^a In the case of the Bank of Columbia v. Patterson,^b it was held to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, not under seal, where the contract has been completely executed; and that, in such case, it is not necessary to declare upon a special agreement. So, where a beneficial service has been rendered to the defendant, under the special agreement, but not in pursuance of its terms, the plaintiff may recover upon a quantum meruit.^c Or where the defendant is the occasion of its non-performance; or where the contract has been rescinded by the parties, or put an end to by the defendant.^d Or where the defendant, by his own act, defeats the performance.^e And where the plaintiff seeks to recover on a special contract, and the evidence offered will support a common count, supposing no special agreement, he may recover under the latter.^f introduce uncertainty and confusion into legal proceedings, and to encourage negligence in making contracts, and infidelity in performing them. But, it was further insisted, that those authorities, even supposing them to have irrevocably settled the practice, could not be applied to the present case. Here, the contract specially defined the terms upon which it was to be performed by both parties, and, also, the terms upon which it was to be closed. In all the cases cited, the right of action was held to accrue upon the termination of the contract. While it subsisted, it could not be pretended, that a general indebitatus assumpsit could be maintained. It had, indeed, been said, that the contract was terminated by the death of the testator, and the act of his executor. But no case had gone so far as to decide, that an agent, whose authority terminates upon the death of his principal, may proceed against his personal representatives upon the contract of agency, as if it had been terminated by some wrongful act of the principal. The authority of the agent terminates with the death of the principal, but for services performed under the agency, the contract remains open.

2. The agreement precluded the plaintiff from claiming compensation for any thing done in execution of his agency, except accordidng to the terms of that agreement. The case cited to show the contrary does not apply.ⁱ Here, whatever services the plaintiff performed before 1812 in expectation of being compensated by the agency, must be considered as satisfied by the contract of agency then made. That contract must be regarded as embracing all services performed, or to be performed, by the plaintiff, for the defendant's testator, in respect to the sale of lands. If the disputed items of account arose under the contract, they could only be recovered in a special assumpsit grounded upon the contract. If they were claimed, independent of the contract, as not being within its terms, it was insisted, that the plaintiff could set up no claim to compensation for services in the agency not embraced by the contract, which settled and defined the rights of the parties or falsified, in equity. All the authorities referred to in the principal case cited from the New-York reports,^k are from the decisions in equity; but it does not follow, that a Court of law, not having the same means of doing justice between the parties, will pursue the same practice. At all events, in order to permit an account to be opened, there must be evidence of mistake or fraud.^l There was neither in this case lands in Ohio, the payment of the accruing taxes on them, examining, surveying, and preparing them for sale, and of other services to be performed by Perkins, in some way or other connected with those lands. If this be the evidence alluded to, there was no objection to submitting it to the Court, to say whether the whole of this written evidence, or any part of it, created a special contract, investing Perkins with the agency of Hart's land.

But we find in this record evidence of a different character, such as accounts, receipts, and depositions, in relation to Perkins' agency respecting Hart's lands in Ohio. If this was intended to constitute a part of the whole evidence upon which the question of law was to arise, we should be of opinion, that it was fit only for the decision of the jury, and ought not to have been submitted to the Court.

The disinclination which this Court has always evinced, to send parties back to the Court below, if, by any reasonable construction,...