Bingaman v. Hickman, 115 Pa. 420

Bingaman v. Hickman

115 Pa. 420 | Pa. | 1887

Mr. Justice Gordon

delivered the opinion of the court, March 14th, 1887.

We have before us a contract under seal, dated May .8th, 1880, entered into by the lien creditors and assignees of Senaca G. Willauer inter se, in which it is recited that “the creditors ” deem it advisable to continue the Willauer kaolin works for the purpose of liquidating his indebtedness. This recital would seem to embrace all the creditors of Willauer of every class, whether lien or general. We have, however, to do wtih none but those who executed the contract before us, and who are the defendants in this case, nor, s:nce- the instrument is sealed with the seal of the defendants, need we go beyond .it in search of consideration for its execution. This contract, *424after the recital as above stated, proceeds to state that: “ The undersignediien creditors and assignees of the said Willauer, being willing that the said kaolin works shall be operated, have entered into the following agreement for the purpose of carrying out the wishes of said creditors, to wit: the said kaolin works, mines and farm shall be placed in the hands of a committee of three, to consist of F. Bingaman, E. B. Cope and Wellington Iiickman, who shall have full power and authority to operate the same in such manner as, in their judgment, will be for the best interests of said creditors, and shall not be held responsible for any errors of judgment or losses in the conducting of the business; that said committee are hereby empowered to purchase carts, horses, harness, and such other personal property as may be necessary for conducting the business, and pay for the same out of the first moneys coming into, their hands from the sale of kaolin or clay; that the said committee shall each respectively have-and receive two dollars per day and their traveling expenses for each and every day actually devoted to said business; that, after deducting all expenses, including taxes, insurance, etc., said committee shall, on the first day of October next, and eveiy six months thereafter, pay over into the hands of the assignees of said Willauer the net proceeds of said business, for distribution in manner following,” etc. Prom this agreement we discover that Bingaman, Cope and Wellington- were agents or employees of these creditors and assignees, and were to be visited witli no manner of personal responsibility-to creditors or others so long as they fulfilled their duty to their principals. Nor, by the said agreement, were they to be held for any losses resulting from the management of said business. The plaintiffs, then," were not only the employees of the covenantors, but by the very terms of the contract itself they were to suffer no loss. Yet, in spite of all this, they were treated by the court below not only as principals, but as the only responsible parties, and upon them the whole loss of the venture was imposed.

It is urged, however, that they were to look to the proceeds of the factory alone for reimbursement. We see nothing of that kind in the contract. They were to apply the moneys arising from the sale of the clay to the purchase of such personal property as might be necessary in conducting the business, but how a deficit was to be made up is not stated, and it is a most extraordinary proposition that the plaintiffs, who were mere employees, were to take upon themselves all risks of the business and bear the losses, whilst their employers were to enjoy the profits, if any such there were. We cannot entertain such an exposition of this contract; the defendants jmust b'ear the loss resulting from their, own undertaking, and *425must pay the plaintiffs their wages anti expenses, and the court below in refusing so to instruct the jury committed a clear error. What we have said sustains both assignments of error, and we therefore

Reverse the judgment and order a new venire.