The Barnett Line Of Steamers v. Chandler

• Citation: 53 Ga. 98
• Parties: The Barnett Line of Steamers, plaintiff in error. v. Black mar & Chandler, defendants in error.
• Decision Date: 31 July 1874
• Court: Supreme Court of Georgia

53 Ga. 98

The Barnett Line of Steamers, plaintiff in error. v. Black mar & Chandler, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Partnership. Statute of frauds. Before Judge James Johnson. Muscogee Superior Court. October Term, 1873.

For the facts of this case, see the decision.

Peabody & Brannon, for plaintiffs in error.

H. L. Benning; Blandford & Garrard, for defendants.

Warner, Chief Justice.

This was an action brought by the plaintiffs against the defendants as partners using the firm name of "Barnett Line of Steamers, " to recover the sum of $1,500 00, which the plaintiffs allege the defendants were indebted to them for services *rendered as their agents. The defendants filed their plea of the general issue, and also a plea denying the part-nership as alleged in plaintiffs\' declaration. On the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiffs. The defendants made a motion for a new trial, on the several grounds stated therein, which was overruled by the court, and the defendants excepted. On the trial, both the plaintiffs were examined in their own behalf. The substance of their testimony was, that in August, 1867, A. Barnett and D. Fry desired to employ plaintiffs as agents of the Barnett Line of Steamers. Plaintiffs told them they would have to hire a clerk to assist them, if they acted as agents, and it would cost $2,000 00. Barnett thought they could get a clerk for $1,500 00, and thinking they could, plaintiffs agreed to take $1,500 00; this was to cover the expense of the clerk, the plaintiffs expecting their profit from the custom of the boats, and the business growing out of the agency. Plaintiffs agreed to hire Mr. Dixon as a clerk, based on this contract, for twelve months, commencing October 1, 1867, and agreed to pay him $1,200 00, and sell him his provisions at cost, which was equal to about $300 00. Mr. Dixon understood that he was employed to assist plaintiffs, in case they received the agency. Blackmar went to New York after making the contract with Barnett, and saw Barnett there; he gave witness (Blackmar) some cards to distribute, among which was one shown and read to the jury, of which the following is, in substance, a copy:

"Barnett through line for New York, on the Apalachicola, Chattahoochee and Flint rivers, in connection with Benner, Brown & Pinkney's Florida line, by steam and sail.

"Through bills of lading given for cotton and goods. See rates on back of card. Agents: Benner, Brown & Pinckney, 9 South William street, New York; H. C. Hart, Eufaula, Alabama; Blackmar &'Chandler, Columbus, Georgia; B. F. Bruton, Bainbridge, Georgia; Barnett & Company, general agents, Apalachicola, Florida."

*On the reverse side was a list of through freight rates. Blackmar did not return to Columbus until the 3d or 4th of October; was in Savannah on the 2d October. Both Blackmar and Chandler testified they had no notice that the agency was discontinued until the publication of the following notice in the Columbus Sun:

"The Barnett Through Line has no agency at this place.

"Barnett & Company,

"General agents, Apalachicola.

"Columbus, November 2d, 1867."

Plaintiffs at once, upon making the contract, began to distribute cards and circulars for the Barnett Line, and to answer questions, solicit freight, and collect bills for the Barnett Line, and continued to do so until the publication of the notice in the Sun; cannot specify any particular bills collected nor remember whether any of the boats of the Barnett Linearrived or departed from Columbus, after the 1st of October, until and before the publication of the notice. Blackmar testified that Captain Dan. Fry did not show him any letter from Barnett notifying plaintiffs that their services as agents would not be wanted. Fry did mention to Blackmar that he had a letter from Barnett, and put his hand in his pocket as though to take it out, but said he would wait until Barnett arrived; that he would be ashamed to read it to him. Barnett was not in Columbus at the time; thinks the boats were owned by Barnett, Fry, Markham, Stapler, Bowers, and perhaps others.

Blackmar & Chandler did not discharge Dixon; kept him twelve months, and paid him $1,200 00, and sold him his groceries at cost; did not discharge him because he had been hired for a year. Blackmar & Chandler had been agents for the Barnett Line before the contract, and served without other compensation than the trade of the boats. The cards published in the Sun, in August and October, 1867, referred to such agency before the contract. Dixon was of some value to plaintiffs; can't say how much; his services were not needed, and plaintiffs' business could have been well conducted without *him; he was only engaged to do the extra work expected to grow out of the contract. Plaintiffs introduced a card from the Daily Sun, of September 21st, 1867, as follows:

"Barnett's Steam and Sail Dispatch Through Line. Cheapest and best route of shipping from New York, New Orleans, St. Louis, Cincinnati, and western rivers, to Bainbridge, Georgia, (Flint river,) and Columbus, Georgia, (Chattahoochee river.) All freight from western markets should be consigned to agents at New Orleans, who will forward them, free of commission for forwarding. Owing to the fluctuations of freights on the Ohio and Mississippi rivers, shippers will find it, to their advantage to consign as above instead of getting specific rates. No charges for receiving or forwarding on goods or cotton consigned to Barnett & Company, at Apalachicola, Florida. Through bills of lading for cotton or merchandize to be shipped to New York or New Orleans, given by the agents at this point, etc. Agents—

Blackmar & Chandler,

"Columbus. Georgia.

"Barnett & Company, General Agents."

Chandler testified, also, as follows: On the day of the appearance in the papers of the notice of discontinuance, plaintiffs addressed a letter in regard to the matter to Messrs. Barnett & Ccmpany, agents, and D. Fry, which letter was introduced. In reply to this, Barnett and Abram Fry called on plaintiffs at their office or place of business for the purpose of compromising and to make a new contract, Mr. Barnett giving as a reason for the discontinuance of the agency that two boats belonging to the line were going to be sent to Texas, and that only two would remain, and that the item of $1,500 00 would appear too large on the balance-sheet for plaintiffs' services as agents for the remaining boats, but was willing to make a new contract, and pay plaintiffs $750 00, and continue the agency. As they could perform the duties connected with two boats without assistance, and thinking they could compromise with Mr. Dixon, and preferring making a concession to having litigation, plaintiffsagreed to accept their proposition, provided security was *given for the payment of the $750 00, and the fulfillment of the new contract, and so notified Messrs. Barnett & Company and Fry. Copy of letter attached. They declined giving security, and all connection between them closed. Plaintiffs did everything required of them by the contract, and the violation was not induced by any action of plaintiffs\', but by the prospective removal of the two boats to Texas, which was not contemplated until the contract had been in force some weeks. Captain Stapler, one of the owners, prevented the removal of the boats.

The following is a copy of the letter:

"Columisus, November 2d, 1867.

"Messrs. Barnett & Company and D. Fry,

"Agents Barnett Line of Steamers.

"Sirs: —In reply to our written communication this morning you verbally propose to do what is right, and pay us for our services, or compromise our demands. In a spirit of concession, and with a desire to settle without litigation, we propose that you pay us $750 00 cash, and end our agency. This offer shall in no way militate against our original claim, and your refusal or acceptance of it is asked this clay.

"Respectfully,

"Blackmar & Chandler."

Both witnesses testified that the contract was verbal.

On the part of the defendants, A. Barnett testified: Plaintiffs first acted as agents of the Barnett Line in 1866 or 1867; they were grocery merchants; as such agents, they posted the departure of the boats, answered inquiries and collected bills, and anything else necessary to the interest of the line. This was with no compensation, except from an increase of their business from persons having dealings with the boats. About May or June, 1867, he was in Columbus, and, in company with D. Fry, called on plaintiffs, who were then acting as agents, and during a conversation the question of an agency with a salary was discussed. Plaintiffs asked the appointment in case any such agency was established, to commence *October 1, 1867, and end October 1, 1868; the agent\'s duty was to do as much as plaintiffs had done, and as much more as they could. After this conversation, witness went to New York, and returned about October 1, 1867; had no other conversation with plaintiffs before October 1, 1867. Wrote a letter from New York to D. Fry, in September, 1867, and sent it by mail; kept no copy; has not original; the substance was to the effect, that owing to uncertainty in anticipated business for the Barnett Line, it wouldnot authorize the establishing of a salaried agency at Columbus, and this notice was to be given to plaintiffs at once. In October, 1867, when he came to Columbus, had a conversation with plaintiffs, in which they proposed a compromise, which was refused. After the 1st of October, plaintiffs continued to post boats voluntarily, as they had been doing. Before October 1st, the officers of the boats were instructed to withdraw all accounts left in the hands of plaintiffs for collection, and not to transact any business through them. Witness subsequently caused a notice to be published in the Sun and Times "that the Barnett Line had no agency in Columbus, "...