Reiter v. Morton

• Decision Date: 22 November 1880
• Citation: 96 Pa. 229
• Parties: Reiter <I>v.</I> Morton.
• Court: Pennsylvania Supreme Court

Page 229

96 Pa. 229

Reiter v. Morton.

Supreme Court of Pennsylvania.

November 11, 1880.

November 22, 1880.

November 11th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 172.

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Hampton & Dalzell, for plaintiff in error.—Where covenants are mutual and dependent, one party cannot call upon the other to perform his part of the contract without having actually performed or tendered performance of his own: Cassel v. Cooke, 8 S. & R. 268; Grace v. Regal, 11 Id. 351; Withers v. Atkinson, 1 Watts 236.

To this narr. the defendant pleaded "covenants performed absque hoc." The authorities are uniform to the effect that under this plea the burden of showing performance by the plaintiff of his own covenants was upon him: Zents v. Legnard, 20 P. F. Smith 192; Wilkinson v. Turnpike Co., 6 Barr 398; Martin v. Hammon, 8 Id. 270; Turnpike Co. v. McCullough, 1 Casey 303.

So far as the burden of proof is concerned the court actually held that any dissolution was unlawful and called upon the defendant for a justification.

An agreement under seal cannot be contradicted by a parol agreement of an earlier date not mentioned or referred to when the sealed agreement was executed. We were entitled to an affirmance of our third point. The court erred in its rulings as to the measure of damages. The jury were plainly told that in considering the value of the plaintiff's contract they might take into consideration future profits considering the length of time the firm was to continue. This was clearly indefensible. Let it be conceded that profits may be considered in a case of this kind — for there are cases that so rule — they must not be probable but certain. We have not been able to find any case that abandons this safe rule. The distinction is well drawn in Van Ness v. Fisher, 5 Lansing 240, commenting on Bagley v. Smith, 10 N. Y. 489.

D. T. Watson and Knox & Reed, for defendant in error.—Our rule of court provides that "material averments of facts as are not directly and specifically traversed and denied by the answer shall be taken as admitted." The affidavit of claim alleged that the defendant had wrongfully dissolved the partnership on the 14th day of October 1878. The affidavit of defence did not "specifically traverse" this but admitting the dissolution, proceeded to justify it. Undoubtedly then in the affidavit of claim and defence taken together, the plaintiff did allege and the defendant did admit the dissolution of the firm. The averment of facts in defendant's affidavit was a plea in confession and avoidance. Such has been the uniform construction of the rule of our court. We were not bound on our case in chief to prove that we had performed.

The averment in the narr. of performance is in the usual form, just as it is usual in assumpsit to aver that the defendant "craftily and subtly intending to deceive and defraud the plaintiff" did not keep his undertaking, and that though frequently requested he has not paid. Yet no one supposes that such an averment compels the plaintiff to prove it. It is believed to be universally held that mere surplusage never vitiates. If the performance be unnecessarily averred it need not be proved: 1 Saund. 235; Gibbs v. Cannon, 9 S. & R. 198. Now the rule is, that when a covenant goes to only part of the consideration, and a breach may be remedied by action, then it is independent, and not a condition precedent: Boon v. Eyre, 1 H. Black. 273; Bream v. Marsh, 4 Leigh 23; 2 Pars. Con. 531, note; Obermeyer v. Nichols, 6 Binn. 159; Lewis v. Weldon, 3 Rand. 71; McCrelish v. Churchman, 4 Rawle 26. The courts incline to treat covenants as independent, rather than dependent: McShiffory v. Sharon, 1 Phila. R. 496. There was no objection made to the offer to prove the agreement with Reiter as to contribution of cash capital, on the ground that it contradicted the written agreement. That the profits to be gained in the prosecution of the business were a proper element to be taken into consideration in fixing the value of the plaintiff's interest cannot be disputed. If the profits are such as would have accrued and grown out of the contract itself as the direct and immediate results of its fulfillment, then they would form a just and proper item of damages to be recovered against the delinquent party upon a breach of that agreement. These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into: Fox v. Harding, 7 Cush. 516; Hoy v. Gronoble, 10 Casey 10; Masterton v. Mayor of Brooklyn, 7 Hill 61; Fessler v. Love, 12 Wright 407; Watterson v. A. V. Railroad Co., 24 P. F. Smith 217.

Mr. Justice GREEN delivered the opinion of the court, November 22d 1880.

We are of opinion that several of the assignments of error are sustained, and upon them this case must be reversed. The action was covenant brought by one of two partners upon articles of partnership to recover damages for the wrongful dissolution of the partnership by the defendant. The plea was covenants performed absque hoc. In answer to the defendant's fourth point the court charged the jury that it was not necessary, in the first instance, for the plaintiff to prove performance of all the covenants on his part to be performed; and that it was not necessary that the plaintiff should have satisfied the jury that the defendant, without cause, failed to perform his covenants. On the contrary, the court charged that it was necessary for the defendant to prove that, without cause on his part, the plaintiff neglected to keep his covenants. In other words, although the very cause of action was not the mere dissolution, but the wrongful dissolution of the partnership by the defendant, the plaintiff was not required to prove it, but the burden was on the defendant to prove a rightful dissolution. In this we think there was error. If a partner dissolves the contract for good cause he has a lawful right to do so. The technical breach is no breach at all. To show a breach which entitles the plaintiff to recover he must show a wrongful breach. It is absolutely necessary to allege a wrongful breach in his narr., and that was done in this case, not only in the narr., but also in the affidavit of claim. Being necessary to aver it, it was also necessary to prove it, unless the defendant by his plea admitted the cause of action. But he did not do this. His plea directly put in issue the plaintiff's performance. It is a very familiar rule, often held by this court, that the plea of covenants performed absque hoc puts the plaintiff to proof of performance: Martin v. Hammon, 8 Barr 270; Wilkinson v. Turnpike Co., 6 Id. 398; Turnpike Co. v. McCullough, 1 Casey 303; Zents v. Legnard, 20 P. F. Smith 192. The court having held that the burden was on the defendant, and not on the plaintiff in the first instance, in their answers to the defendant's fourth point and the plaintiff's fourth point, were in error as complained of in the first and second assignments of error, and these assignments are therefore sustained. Third error. We think the defendant was entitled to an unqualified answer in the affirmative to his second point, though perhaps we would not reverse for that reason alone. Fourth error. The plaintiff offered and was permitted to read in evidence detached portions of an entire sentence contained in his own affidavit of claim, thus: "That said firm engaged in the business from said date last mentioned and continued in business as a firm until the 14th day of October 1878, when said defendant * * * dissolved said partnership." In point of fact there is no such sentence in the affidavit of claim, nevertheless the court permitted it to be read just as if it were there and in that exact form. In reality, in the blank indicated by the stars above, the following words occur in the affidavit of claim, "without any just cause or reason, and without any breach of duty on part of plaintiff to justify the same wrongfully." Now the affidavit of defence contains no single and independent admission that the firm was dissolved by the defendant's act on October 14th 1878. The affidavit of defence vehemently denies that there was any wrongful or causeless dissolution of the firm, but on the...