Duff v. Maguire

99 Mass. 300 | Mass. | 1868

Hoar, J.

The court are of opinion that, by the plain import and just construction of the contract signed by the plaintiff and the defendants on June 15, 1866, they associated themselves together as a company, for the purpose of purchasing and managing mining property in California. The plaintiff was appointed agent of the company, to go to California and select the property; which, if his recommendation should be satisfactory to the majority of the associates, was to be purchased and worked under his superintendence, at a salary to be afterward agreed on. He agreed, with the others, that each of the six associates should contribute equally to the capital required a sum not exceeding five thousand dollars for each. It was agreed that each should pay one hundred dollars to defray the plaintiff’s expenses as agent, and the five defendants paid each one hundred dollars. The plaintiff was assured that whatever his expenses might exceed five hundred dollars should be allowed and paid.

The contract thus created does not seem to us to have been varied by the letter of instructions which he carried with him to California, nor by the other letter addressed to him at a later period. The letter of instructions says, “ You are to be equally interested with ourselves; ” and speaks of “ the desire of all the gentlemen associated with you.” Though the letters give directions to him as an agent, they are written in behalf of the company and the subscribers to the agreement, of whom the agent was himself one. The last letter indeed speaks of “ the universal opinion of the subscribers,” and of “the general feeling,” which would apparently refer to the defendants exclusively; but in another passage it speaks of explaining the feelings of “ the company here,” which implies that his association with them was still recognized.

It is the common case of partners in a common enterprise, employing one of their number in a particular part of the business, with a stipulation as to his separate compensation ; but the contract with him is the joint contract of all the partners, himself included. The responsibility for the expenses incurred and the services rendered by the plaintiff as agent was therefore one which rested upon the whole company; and although his agency was the only part of the partnership business which was ever actually transacted, the settlement of the accounts is still a matter of equity jurisdiction exclusively. Myrick v. Dame, 9 Cush. 248.

But the plaintiff contends that the partnership, if one existed, has been dissolved, and that nothing remains to be done to settle the partnership affairs but to ascertain and pay the balance due him ; and that under such circumstances an action at law may be maintained.

The answer to this suggestion is, that it does not affirmatively appear that the partnership had incurred no other expenses, and that no other accounts remain to be settled. But if this should be made to appear, the difficulty remains that these defendants have no contract with the plaintiff which is obligatory upon them jointly. He made no agreement that the other five should pay him, but that the whole company should do so, including himself among the promisors. The liability of each member to contribute his share to the discharge of a partnership debt, or to reimburse to one what he may have paid beyond his just proportion, is a separate and not a joint liability. Neither of the five defendants is answerable to the plaintiff for the other four. A joint judgment at law cannot therefore be rendered against them upon this cause of action. All the cases cited for the plaintiff are cases in which there were but two partners, or where there was an express promise to one by the other partners jointly; and we are not aware of any case in which the doctrine has been carried farther to sustain an action at law, nor do we see how it could be consistently with settled principles. The plaintiff’s remedy is in equity, and the verdict for him cannot be supported. Exceptions sustained.