Ryder v. Jacobs

• Citation: 182 Pa. 624,38 A. 471
• Decision Date: 11 October 1897
• Docket Number: 194
• Parties: Louis E. Ryder v. William M. Jacobs, Appellant
• Court: United States State Supreme Court of Pennsylvania

38 A. 471

182 Pa. 624

Louis E. Ryder v. William M. Jacobs, Appellant

No. 194

Supreme Court of Pennsylvania

October 11, 1897

Argued May 21, 1897

Appeal, No. 194, Jan. T., 1897, by defendant, from judgment of C.P. Lancaster Co., May T., 1894, No. 57, on verdict for plaintiff. Reversed.

Assumpsit to recover salary and for money loaned. Before LIVINGSTON P.J.

The facts appear by the opinion of the Supreme Court.

At the trial defendant proposed to ask a witness, H. C. Weidler, who had been a teacher of bookkeeping for seventeen years at the head of the Lancaster Business College, and who had testified to his experience in keeping partnership books, this question: "Please look at the ledger before you, pages 2 and 10, being the accounts of W. M. Jacobs and L. E. Ryder and state whether or not each of these accounts indicate an account of a partner with the firm."

Objected to by plaintiff. Disallowed. Defendant excepts. [5]

Defendant proposed to ask a witness, Aldus C. Herr, as to whether or not, looking at the book before him, the accounts of W. M. Jacobs and L. E. Ryder on pages 3 and 10, respectively, are those between partners in account with the firm.

Objected to by the plaintiff. Disallowed. Defendant excepts. [6]

The court charged in part as follows:

[There was a contract for $200 a month. That is settled. There is no question about that. Was that contract changed at any time from $200 a month to a participation in the partnership profits, the net profits? If you find it was, then he would be entitled to $200 per month up to the time the change was made, and would be entitled to a portion of the net profits (one half) from that time so long as that relation existed. And if you are satisfied that was not the case, and that he has overdrawn $400, then your verdict would have to be for the defendant.]

[If you find there was a contract for $200 per month at first, and find it was changed, as I have said, to a participation in the profits, even if there were no partnership at all, if you find there was no partnership, and it was changed from that time, and he was to receive part of the profits for his services and contributing nothing to the firm but his services, then he would be entitled to receive half of the net profits while he remained.]

Defendant's points and answers thereto were among others as follows:

1. If the jury believe from the testimony in the case that after May 1, 1893, the plaintiff was not to receive a compensation of two hundred dollars ($200) per month for his services, but thereafter a share of the profits of the business, there can be no recovery by the plaintiff in this action for any services rendered after May 1, 1893. Answer: This point is refused unless the jury find from the evidence that there was a partnership existing between the plaintiff and defendant from and after May 1, 1893, until the time they separated in March, 1894. If the jury find from the evidence that a partnership did exist between them during that period, their verdict must be for the defendant, because one partner cannot sue another partner for a partnership transaction, except by bill in equity, or by an action of account render. [3]

2. If the jury believe that the contract between plaintiff and defendant was that, after May 1, 1893, he should receive half the net profits of the business as compensation for his services for the ensuing year, there can be no recovery by the plaintiff in this action for services after May 1, 1893, no matter what those services were. Answer: That we answer in the same way with the other. If you find there was a partnership, then we say he can receive no pay for services in this action at all. But, if there was no partnership, and the contract was changed, as we have said, about April or May, and he was to receive half of the profits, then he can recover in this action even though there was no partnership. [4]

Verdict and judgment for plaintiff for $3,027.11. Defendant appealed.

Errors assigned were (1-4) above instructions, quoting them; (5, 6) rulings on evidence, quoting the bill of exceptions.

But the first four assignments of error are sustained, the judgment is reversed, and a venire facias de novo is awarded.

John E: Malone and J. Hay Brown, with them W. U. Hensel, for appellant, cited as to expert testimony, 1 Wharton on Evidence, 439.

B. F. Davis and George Nauman, for appellee, cited as to the charge, Strawbridge v. Cartledge, 7 W. & S. 394; Rogers v. Hall, 4 Watts, 359; Pardee v. Orvis, 103 Pa. 451; Reese v. Reese, 90 Pa. 89; P.R.R. v. Coon, 111 Pa. 430; Buyers v. Patterson, 2 W.N.C. 649; Trego v. Pierce, 119 Pa. 139.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The plaintiff, as appears by his statement filed, brought suit to recover a balance of $2,606.14, with interest from April 1, 1894. He averred in his statement that defendant owed him the greater part of this amount, under a verbal contract by which he was employed as a salesman of tobacco and cigars of which defendant was a manufacturer; that by this contract he was to be paid $200 per month and traveling expenses; the payments to be made monthly; that he served under this contract from January 18, 1893 to April 7, 1894, a period of about fifteen months; that under the contract, the amount payable to him for services and expenses, was $2,926.54; that, in addition, he loaned to the defendant $1,900 in cash, making altogether, charges in his favor of $4,826.54. On this, he acknowledged payments made by defendant of $2,220.40, leaving the aforesaid balance of $2,606.14 due him.

This is the ground on which, in his statement filed, he bases his right to recover. The defendant, in his affidavit of defense admits that by verbal contract he employed plaintiff as salesman at $200 per month in January, 1893, but avers this contract terminated by mutual consent on May 1, 1893; that, at that date, plaintiff was paid in full; that then a new contract was verbally entered into between them, by which plaintiff agreed to serve as salesman as theretofore, but as compensation was to receive one half the net...