61 Md. 344 | Md. | 1884
delivered the opinion of the Court.
This action is brought on a sealed instrument, dated the 28th of January, 1881. It professes to be made between the plaintiff, of the one part, and D. Herzog & Co., of the other. The partnership of D. Herzog & Co. is alleged to have been composed of Daniel Herzog and Moses C. Crane, and they are sued jointly as partners. The agreement sued on was signed by D. Herzog, in the partnership name of D. Herzog & Co., and by the plaintiff. The action was commenced on the 15th of June, 1882. The record before us does not disclose why there was a severance of the defendants in the subsequent proceedings; but Herzog pleaded separately, and the judgment was rendered against him alone. It may have been that Crane was not served with process, and hence he was not included in the judgment.
The declaration, after setting forth the terms of the agreement, alleges that the plaintiff entered the service of the defendants under the agreement, at the time specified, and fully and faithfully performed all the duties required of him, until he was, without cause, discharged therefrom, after about five weeks’ service : and that the defendants failed and refused to employ him, as agreed in the premises, for the remainder of the term, and failed and refused to pay him as agreed upon for the remainder of the time specified in the agreement, although he, the plaintiff, was at all times ready, able and willing to serve the defendants, and perform all the duties required of him by the agreement; wherefore he says he has sustained great loss, damage, and injury, and he claims, &c.
To this declaration, the defendant Herzog pleaded, 1st. Non eat factum; 2d. Payment; 3d. That the contract declared on had been mutually rescinded; and, 4th. That the contract had been abandoned by both plaintiff and defendant. Upon these pleas issues were joined, and the case was tried before the Court, without the assistance of a jury.
On cross-examination the plaintiff admitted that, on the 20th of Feb. 1882, he entered into a new engagement with the defendants, to perform the same or similar services for them to those required of him under the contract sued on, but for different compensation; and that he did perform such services under the contract of Feb. 20th, 1882,. and was fully paid therefor.
The defendant offered evidence to prove that the exhibitions had been given up and abandoned upon the suggestion and by the advice of the plaintiff himself, and that all claim by him, under the contract sued on, had been fully adjusted and discharged.
There were several propositions of law submitted to the Court; and while those on the part of the plaintiff were accepted, all those on the part of the defendant, except one, were rejected.
Tbe controverted and controlling legal propositions involved, and presented by the prayers, are reducible to two: 1st. Whether the contract sued on was so executed as to be binding on both members of the firm of D. Herzog
1. The first question is raised by the fifth prayer offered by the defendant. By that the Court was asked to say, that if from the evidence it was found that the contract sued on was not signed by the defendant Moses C. Crane, or was not assented to by him, then, under the pleadings in the case, the verdict should be for the defendant. This proposition, we think, ought to have been adopted by the Court. The law upon the subject is too firmly established to admit of doubt, that one partner cannot bind his co-partner by signing an instrument under seal, in the firm name and style, simply by virtue of his authority as partner. In such case, to make the instrument binding on the partner not signing in person, it must appear that there was either a previous authority, or a subsequent ratification by such partner, either express or implied, whereby he has adopted the signature as binding upon him. This is the rule as we find it stated in the authorities upon the subject, and it has been fully recognized by this Court upon more than one occasion. Smith vs. Stone & Mulliken, 4 G. & J., 310; Albers vs. Wilkinson, 6 G. & J., 358. In some of the American cases the rule has been spoken of as rigid and technical; but as said by Judge Story, (Story on Partnership, sec. 121,) the main struggle has been, not so much to contest the doctrine of the common law, that an authority to execute a sealed instrument does not flow from the ordinary relation of partnership, as to contest the doctrine, that it requires a prior authority under seal, or a subsequent ratification under seal, fir make the execution valid. The old authorities, and indeed the whole current of English decision, establish and maintain the rigid doctrine in its fullest extent. This
2. As to the second question. It is certainly true, as a general principle, that at the common law, for what would appear to be purely technical reasons, an obligation under seal cannot be discharged before breach by an agreement in parol, or by any instrument not executed with the same solemnity as the original obligation. All authorities, however, agree, that after breach, for the damages occasioned thereby, any agreement or transaction between the parties that would operate as an accord and satisfaction in ordinary cases, may be pleaded in discharge. Harper vs. Hampton, 1 H. & J., 675; Kaye vs. Waghorn, 1 Taunton, 428; 1 Chitt. Pl. (16th Ed.) 515, 516. But this distinction is extremely technical, and in many cases it has been found to operate injustice; and, consequently, in many of the Courts of this country the rule has been, to a considerable extent, modified. And it has been held repeatedly, that whenever the breach complained of has been superinduced by the action or agreement of the plaintiff, and the matter is properly availed of in defence, he will not be allowed to recover on the technical breach thus produced. The tendency of all Courts at this day is to prevent circuity of
Among the authorities referred to with approval by this Court in Hamill’s Case, 5 Md., 182, is 1 Roll. Abr., 453, pl., 5, setting out a case where the condition of a bond was to raise a mill, and the obligor came to the obligee and told him that everything was ready to erect the mill, and asked him when he would have him come and put it up; the obligee answered, that he would not have it, and discharged the obligor entirely of the obligation to erect the mill, and that was held sufficient to excuse the obligor from the performance.
In the case of Fleming vs. Gilbert, supra, it was held that evidence of a parol agreement of the obligee, to waive any further performance of the requirements of the condition of a bond, was admissible, as an answer to the action. The learned Judge, speaking for the Court, said : “ The plaintiffs conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond, so far as it related to a discharge of the mortgage on record; and I see no infringement of any rule or
The principle of the decision in Fleming vs. Gilbert has not only been fully approved and followed by this Court in 5 Md., 182, but it has been followed in many other cases, and has but recently been cited, with approval by the Supreme Court of the United States, in the case of the Canal Co. vs. Ray, 101 U. S., 522, 527. That tender of performance, or waiver of performance, of a condition or covenant under seal may be shown by parol evidence, was expressly held in the case in 5 Md., 170; and waiver or abandonment is what was sought to be shown in this case.
If, therefore, it be found that the plaintiff did advise the suspension or abandonment of the entertainments or exhibitions contemplated by the agreement sued on, and that they were so abandoned with the plaintiff's assent; and that the plaintiff afterwards, but within the time covered by the original agreement, made a new engagement with the defendants to perform the same or similar services, on different terms, — such conduct on the part of the plaintiff would amount to a waiver or abandonment of the original agreement, and would constitute a good defence to the action. And it follows that this Court is of opinion that there was error in the Court below in excluding the parol evidence of such waiver and abandonment; such evidence being pertinent and admissible under the
Judgment reversed, and new trial awarded.