46 Pa. 426 | Pa. | 1864
The question reserved in the court below was, whether, under the contract between the parties, it was the right of the defendant, at his will, to terminate the arrangement into which they had entered, and to discharge the plaintiff from his employment. If it was, there can be no recovery in this action, for the plaintiff was discharged before anything had been earned according to the terms of the agreement. This brings us at once to inquire what the stipulations of the contract were. It matters not what in our opinion would have been a reasonable arrangement, nor what it may be supposed the parties anticipated, nor whether the plaintiff’s early discharge was a hardship to him. The true question is, what was the contract ? To what did the parties bind each other? We are not at liberty to make contracts for them, or to add any stipulations which they have not seen fit to incorporate. ' We cannot give to a mere expectation the sanction, or the binding force of a covenant. No doubt in construing any written instrument, the court may take into view the situation of the parties when it was made, and the objects they must then have had in view, but still when a breach of a written contract is alleged, the language of the instrument must determine to what its parties have bound themselves.
The agreement upon which this suit was brought commences with a recital that the defendant was about founding a colony upon tracts of land which he had obtained from several individuals. It then stipulates that in consideration of the time, services, and abilities of the plaintiff directed to the sale of the lands to customers brought by the advertising and influence of ’the defendant, or in any other way, the plaintiff should receive one-half the net proceeds resulting from the sales made by him. The mode of ascertaining the profits is then provided for. The contract declares that the profits shall be calculated over and above the. cost of the land and expenses; that settlements of the books shall be made each month, and that profit shall be allowed only upon sales that turn out to be good, but that money paid upon places the plaintiff may sell, and forfeited, shall, after deducting expenses, be counted as profits. The agreement then proceeds to stipulate that while the plaintiff is engaged in the business, he shall not engage in other occupations, and that the defendant shall not interfere with him in making sales, or procure any other assistant, unless the number of customers should be beyond the capacity of the plaintiff to attend to them. There are other provisions in the agreement which need not be noticed, for they do not affect the question now before us. There is nothing said in regard to the time during which the. agreement should continue, and nothing in its language to define the duration of the service of the plaintiff, or of his employment by the
It is argued, on the part of the plaintiff, that if the contract cannot be treated as a hiring until the land should all be sold; or, in other words, until the completion of the enterprise, there is an implication to employ for a year, or at least a month. No doubt there is a class of contracts for the employment of servants where the law presumes the contracts to intend a yearly or monthly employment, though nothing is said of the duration of service. They are more numerous in England than in this country. They relate to contracts of hire of menial, domestic, and husbandry servants. They are so construed because such
Judgment affirmed.
[The ease of Peacock v. Cummings, above referred to, was not marked for report, but as it is cited as authority here, and was the basis of the decision of the learned judge of the District Court (Hake, J.) by whom Coffin v. Landis was decided, it is inserted here. All the material facts are stated in the opinion of the court.]
Peacock et al. versus Cummings et al.
The opinion of the court was delivered by
Strong, J. — The plaintiffs and defendants entered into copartnership on the 8th day of February 1860, for the purpose of publishing a daily newspaper in the city of Philadelphia. By the articles of copartnership it was agreed, among other things, that the stock of the firm should be divided into fifty shares, and that each proprietor should be interested in the proprietorship, stock, property, profits and losses, in the proportion which the share or number of shares held by him bore to the whole number of shares. It was agreed that the association should continue for the full period of five years, from the first day of February 1860, and that at the expiration of that time, or upon its other sooner dissolution, the stock and property should be sold, divided, or otherwise disposed of. It was also stipulated that an editor should be employed, from time to time, for a term of not more than five years, at any one engagement, and at a salary of not more than two thousand dollars per annum; and also a publisher for a term of not more than five years at any
The complainants are the holders of twenty-seven shares of the stock, and the defendants are the. holders of the other twenty-three shares.
The bill avers that on the 8th of February 1860, James S. Chambers, one of the defendants, was elected publisher of the newspaper, but that neither at the time of his election nor subsequently was any term assigned for the duration of his employment; that he continued to act as publisher until August 16th 1862, but did not devote care, skill, and attention to the business of the department to which he had been assigned; that in the month of April 1861, he accepted an appointment as navy agent, at Philadelphia, the duties of which office have occupied his time and attention ever since, to the exclusion of the interests of the copartnership. The bill further charges that at a regular meeting of the association, held on the 16th of August, A. p. 1862, at which all the proprietors were present except Ferdinand L. Fetherston, one of the complainants (he, however, having been represented by his proxy), a resolution was passed, removing the said J.'S. Chambers from being the publisher, and appointing the said Fetherston in his stead, and that the resolution received in its favour the votes of the holders of twenty-seven shares of the stock. The bill further avers that from the time of the adoption of said resolution to the present, the defendants have refused to permit Fetherston to act as publisher of the newspaper in place of the said Chambers, and have hindered and prevented him from entering on the duties of his appointment, in violation of the articles of the association. The complainants therefore pray that the defendants may be enjoined against denying to the said Fetherston the right to publish the said newspaper, and against interfering or intermeddling with him in the exercise of his rights as publisher, and against refusing him access to said paper and all the property of the copartnership, and against disobeying or interfering in any way with the resolution passed August 16th 1862.
To this bill the' defendants have put in separate answers. They agree in substance in denying that Chambers held his appointment at the will of the association, or of the complainants, who are a majority of the partners, and they assert in answer to interrogatories propounded, that the defendant, Chambers, was on the 8th day of February 1860, selected and chosen publisher of the newspaper, and that it was distinctly understood and agreed, by and between the said Chambers and the said partners, that the term of five years was assigned between themselves, and agreed upon with him for the term of his employment, and that
We have, then, a case of a partnership in which a majority of the partners, both in number and interest, have determined that the duties of publisher, as defined in their fundamental articles, shall be performed by an agent whom they have chosen. The agent was eligible, for he was a proprietor. So far as it was in their power, the majority have not only imposed upon him those duties, but they have conferred upon him all the rights and privileges which, under the articles of copartnership, belong to the office of publisher. Such is the effect of the resolution of August 16th 1862, and this was done at a regular meeting of all the partners, at which each was allowed a voice. With this action of the majority the defendants are not only dissatisfied, but they deny the power to pass such a resolution appointing the complainant, Eetherston, the publisher, and one of them refuses to permit him, though thus appointed, to enjoy the rights and enter on the duties of his appointment.
That it was the action of the firm, and obligatory upon all the partners as such, is maintained both in reason and authority, unless it was in conflict with the fundamental articles. In ColIyer on Partnership 104, the author, after remarking that it had been said by a learned writer (Chitty’s Laws of Commerce, vol. 3, p. 224), that, in the absence of an express stipulation, a majority must decide as to the disposal of the partnership property, adds, that “it may perhaps be laid down that, in a partnership without articles, the power of the majority to bind the minority is confined to the ordinary transactions of the partnership.” In Story on Partnership, c. 7, § 123, the author says, “But another question may arise, and that is, whether, in case of partnership, the majority is to govern in case of a diversity of opinion between the partners as to the partnership business and the conduct thereof, or whether one partner can, by his dissent, arrest the partnership business, or suspend the ordinary powers and authorities of the other partners in relation thereto against the will of the majority, where there is no stipulation in the partnership articles to control or vary the result, (for, if there be any stipulation that ought to govern), the general rule would seem to be that each partner has an equal voice, however unequal the shares of the respective parties may be, and the majority, acting fairly and bond fide, have the right and authority to conduct the partnership business within the true scope thereof, and dispose of the partnership property, notwithstanding the dissent of the majority.”
If, then, the rule be that in the management of the interior affairs of a partnership, a majority of the partners must govern, what is there in this case to take it out of the rule ? Why is
The parties agreed that a publisher should be elected for a term not exceeding five years. They fixed a maximum period of service beyond which they could not transgress, but no minimum was defined. The articles left it in their power to employ a publisher for any less term than five years. Duration of service was left to be defined by agreement, outside of the articles, or, if not defined, it was necessarily at- will. Of course, if not defined by agreement, any incumbent was removable by the firm. Clearly, therefore, it rests upon the party which denies power to remove to show that the power was fettered by an agreement for a definite period of service not expired when the resolution of August 1862 was adopted. This is not shown by the pleadings.
And as the pleadings do not show any hiring or employment of Mr. Chambers for a definite term, so the proofs taken utterly fail to establish it.
And now, to wit, May 6th 1863, this cause having come on for argument at the January Term last, and having been argued by counsel, it is considered, adjudged, and decreed that the decree of this court entered at the hearing at Nisi Prius be reversed, and that the defendants, James S. Chambers, Alexander Cummings, and Thomas J. Williamson, and each of them, their servants, agents, and workmen, be perpetually enjoined and restrained from denying to the complainant, Ferdinand L. Fetherston, or to such other person or persons as may be appointed by the members of the firm of Peacock, Chambers & Co., the right to publish the newspaper described in the complainants’ bill, or any of the rights and privileges which belong to the office of publisher, under the articles of association of the firm; and that they be further enjoined and restrained from interfering or intermeddling with said Ferdinand L.' Fetherston, in the exercise of his rights as publisher of said paper, and from refusing him access thereto, and to all the property of the said copartnership, and from disobeying or resisting in any way the resolution adopted on the 16th of August 1862.
And it is further ordered that the defendants pay the costs.