120 F. 880 | 5th Cir. | 1903
after stating the case as above, delivered the opinion of the court.
The first and the second of the errors assigned are substantially one, to the effect that the court erred in directing the jury to find a verdict for the .defendants. The other was not argued, and will not be considered. The contract which is the basis of this action provides that one of the parties thereto shall furnish to the other designated employment, and that the other shall furnish designated services at stipulated prices therefor; the mutual transactions contemplated by it to begin on the ist of October, 1898, and to continue for a period of 12 months thereafter. In the nature of the subject of the contract and of the terms thereof, if the plaintiff, who was the sole contracting party on his part, had died within-the 12 months next after the ist of October, 1898, such death would have terminated the contract. The party of the other part thereto being a trading partnership consisting of three individual members, the death of one of the members might or might not terminate the contract, because such death might or might not actually dissolve the partnership. While it is true, as a general rule, that the death of one of the partners dissolves the partnership by operation of law, it is competent for partners to provide against that contingency by their previous agreement, and a partner may, by his will, provide that the partnership shall continue notwithstanding his death, and if this is consented to by the surviving partners it becomes obligatory, just as though if the
“To facilitate the advantageous winding up of our partnership affairs, I give my executors authority and power to leave the whole of my shares or interest in the partnership of Chas. P. Orthwein & Sons in said business until the first day of July following their taking charge of my estate. My said interest during said period of its continuance in said firm to share in the profits and losses of the business as theretofore.”
This will is dated December 22, 1898, and was duly probated January 3, 1899.
On the part of the partnership the contract was signed: “Chas. F. Orthwein & Sons. Wm. H. Ross, Manager Steamship Department.” Mr. Ross testified on the trial that he attended to the making of the contract on behalf of Orthwein & Sons; that he was in consultation with Wm. J. Orthwein, and no one else; that, though it bore date September 30th, it was not signed on behalf of the partnership until he had consulted the various lines of steamers. He could not fix with certainty the date when it was signed, but thought it was about Christmas, or the 1st of January after its date. He testifies that Wm. J. Orthwein was in New Orleans, where the office of the manager of the steamship business of Chas. F. Orthwein & Sons was located, in February after the death of Mr. Chas. F. Orthwein. It is not disputed that the work went on under the contract in question continuously from the date of the death (in December) of Chas. F. Orthwein until the 26th day of May following. There is proof tending to show that both of the surviving partners accepted as executors named in the will of their deceased father, who had been the senior partner, and that they did, according to the terms of the will, continue the business until the 1st of July, 1899. “Wm. J. Orthwein, as one of the members of the late firm of Chas. F. Orthwein & Sons, and as one of the liquidators of said late firm-, and as one of the executors of the estate of Chas. F. Orthwein, deceased,” in answer to the plaintiff’s suit, denies all and singular the allegations thereof, “except in so far as may be hereinafter specially admitted.” The answer then “admits the making of the certain contract between the said late firm of Chas. F. Orthwein & Sons and the plaintiff, of which a copy is attached to and filed with the original petition herein, and respondent admits the termination of said contract by the said Chas. F. Orthwein & Sons on the 26th day of May, 1899.” This termination of the contract by Chas. F. Orthwein & Sons took place after the expiration of five months from the date of the death of Chas. F. Orthwein, and within five weeks of the date when it would have been terminated by the termination of the partnership under the terms of the testator’s will. The answer does not claim that the contract with the plaintiff was terminated by or on account of the death of Chas. F. Orthwein, but it denies that the plaintiff
“I took the net registered tonnage from the time I commenced the contract until it was broken. That amounted to so many tons — I cannot remember — > and my profits for that length of time was so much. I figured out that I made so much on the registered tonnage of these ships, and from that time on until the contract should have run out I kept a record of the vessels that came here consigned to them that I should have had, and I figured them on the same basis, as X say, of that amount on the same vessel.” Being asked, “What does the document now exhibited to you represent?” he answered’: “This paper first shows the list of the vessels I loaded up to that time, the 26th of May, when this contract was terminated, and in that list it shows the profits I made at that time on that number of vessels. It shows the name and tonnage of each vessel.”
He then presented also another list, which he said represented the vessels that he should have had up to the time his contract ran out, figured on the same basis. In reference to this method of showing net profits actually made during the eight months that the contract was recognized and running, and the estimation on this basis of the profits that reasonably would have accrued on the work that should have been furnished the plaintiff and done by him on and after the 26th of May until the 1st of July, the witness Wm. P. Ross, who, as “manager of the steamship business” for the respondents, had made the contract, being asked, “What do you say as to the fairness of the calculations made by Mr. Lincoln?” said, “I do not know of any other method that would be as fair, because it deals with so many kinds of cargoes, and it all resolves itself into so many tons after all, whether it is the net register or actual cargoes does not matter.”
It is clear to us that these issues of fact should have been submitted to the jury, and that the Circuit Court erred in withdrawing the case from the jury by directing a verdict for the defendants. Therefore the judgment is reversed, and the cause remanded to the Circuit Court, with direction to that court to award the plaintiff a new trial.