Ellis v. Crawford, No. 2,268

No. 2,268 | Cal. | Jul 1, 1870

Rhodes, C, J.,

delivered the opinion of the Court, Temple, J., Crockett, J., and Wallace, J., concurring:

The plaintiff, in order to hold the defendant responsible for the wages of himself and his assignors, for the labor performed by them on the schooners Stag Hound and Louisa Morrison, takes the position' that in the construction of the schooners, Howlett was the employe' and agent of the defendant ; that the defendant was the principal; or, if the schooners were not built entirely on his account, that he was jointly interested with Howlett in their construction. The defendant’s position is, that neither of the vessels was built by him, or on his account, either wholly or in part; that Howlett was not his agent or employe; that they were built by Howlett, on his own account, and under certain contracts,- by which he agreed to build the Stag Hound, and deliver her to the defendant, and to build the Louisa Morrison, and deliver her to Morgan & Co.; and that the defendant acted as the agent of Morgan & Co. in contracting for the building of the Louisa Morrison, and of Howlett, in certain particulars, in the building of both schooners. •

The liability of the defendant is to be ascertained by determining the true relation which he and Howlett bore to each other in the building of the schooners, except in the instances in which the defendant may have employed men to work on the schooners, without disclosing to them that he was not the principal in the work, when, of course, he became responsible for their wages. For the purpose of ascertaining the relation which they sustained towards each other, the jury were required to take into consideration all the facts and circumstances attending the construction of the schooners.. They were not limited to the letters which, the defendant and Howlett wrote to each other; even admitting that they contained evidence of the contracts under which the schooners were built, which would be sufficient to bind them in an action to which they were- the parties. For it is apparent, we think, that they may have executed a contract which was drawn with the utmost formality and precision, but which yet might not afford any clue to their true relation. They would be bound by the contract, but third persons might look outside of the contract, and ascertain from other evidence what their real relation was to each other, and to the subject-matter of the contract. Were this not the rule, it might be impossible to reach a secret partner or an undisclosed principal. The contract is not to be disregarded in a controversy between either of the parties to the contract and a third person, for it is prima facie evidence of the relation the parties to the contract bear to each other in respect to the subject-matter of the contract.

It being the province of the jury to find the capacity in which the defendant acted in the building of the schooners, and the evidence on this point being very conflicting, we cannot disturb the verdict as being contrary to the evidence. It remains, therefore, to be considered whether the Court erred in its rulings in respect to the evidence, or in giving or refusing instructions to the jury.

The letter of the defendant, of December 2, 1867, Hewlett's answer, and the defendant’s reply, constituted a contract for the building of the schooner Stag Hound. It was the duty of the Court to construe those letters, and to determine whether they constituted a contract. Their construction should not have been left to the jury. It was their province to determine whether the letters were written and received by the defendant and Hewlett, respectively, and whether the schooner was built under the contract therein contained. The first, second and third instructions requested by the defendant accord with these views, and should have been given to the jury.

It was also the duty of the Court to construe the letters relating to the building of the Louisa, Morrison, and to determine whether they constituted a - contract; and it was the duty of the jury to find whether the schooner was, in fact, built in pursuance of the contract contained in those letters. The fourth, fifth and sixth instructions requested by defendant, correctly stated the law, and should have been given.

As to the instruction requested by the defendant, which was refused because it was not presented to the Court before • the commencement of the argument, in accordance with Rule 44 of that Court; without commenting on that rule, it is sufficient to say that the instruction does not correctly present the law applicable to the case. Assuming that the respective parties to those contracts were thereby bound to each other, and would not be permitted to show facts aliunde the contracts to establish or avoid a liability, third persons, as we have already remarked, are at liberty to show that the respective parties are interested in the subject-matter of the contract, in a different manner, capacity or extent than is indicated by the face of the contracts; and may prove who are the real principals in the transactions, to which the contracts relate.

The Court erred in admitting evidence of the extra work of the plaintiff, because there is no item for extra work in the plaintiff’s bill of particulars.

The Court also erred in excluding questions, which were asked for the purpose of showing the interest of the witness in the event of the suit. The defendant was entitled to such evidence, as touching the question of the, credibility of the witness.

The defendant should have been permitted to prove who received the freight for the lumber brought to San Erancisco by the Stag Hound, for it had a tendency to prove who owned the vessel, before she was delivered to the defendant at that place.

Judgment reversed, and cause remanded for new trial.

By Sprague, J.: I concur in the judgment.