Loomis v. MacFarlane

91 P. 466 | Or. | 1907

'Opinion by

Mr. Commissioner Slater.

The answer admits the necessity of reforming the instrument. set forth in the complaint so that it will require the amount of earnings therein guarantied shall be ascertained on August 1, 1905; but it denies that the $475 guarantied by the contract were to be net earnings, and also denies that the business was carried on by plaintiff in a faithful, business and workmanlike manner, as required by the contract. The equitable jurisdiction to reform the instrument in that respect is, therefore, admitted, but it remains for us to determine the extent of the relief to be otherwise granted. In order to determine the rights of. the parties and grant the relief to which we think they are entitled, in the view we talye of the matter in controversy, it will not be necessary to reform the instrument further than to the extent admitted by the pleadings.

1. The word “earnings” may mean either gross or net receipts of a business, or of the income of a laborer, according to the connection in which it may be used, and which of these two meanings is to be given the word as used in this contract is a question of construction. If the meaning to be given it is not ascertainable from the context, and if it is doubtful what was meant and intended by the parties, resort may be had to parol testimony to ascertain the surrounding circumstances and from such facts ascertain the intention of the parties, which must prevail.

2. The instrument on which the suit is based recites: (1) That MacFarlane has sold some tools and appliances in operating the Ilwaco log boom, and the handling of all logs put therein after December 1, 1904, in consideration of $500 paid to him; but it does not appear from the testimony of the parties that MacFarlane had any rights of property in the boom, which were subject to assignment and transfer to another, and the only rights of property transferred were the tools and appliances, valued by the parties in the sum of $25. (2) That MacFarlane guarantied to plaintiff that he should be secure in continuing the management of the boom at the same rate of compensation the former had been receiving, until the amount of $500 less the sum of $25, the value of the tools and appliances, is earned to plaintiff. The language “to plaintiff” evidently means something more than that the earnings are to be merely the gross receipts of the business, but that the amount earned is to be personal to him, that is, a profit after paying all other charges. In the contract proper, however, the defendants had agreed “to pay him [plaintiff] such part of said $475 less such amount as is earned therefrom.” It might be proper, also, at this point, to mention the fact that this instrument recites that MacFarlane had sold the property described to plaintiff, and that tbe latter had advanced and paid to the former the sum of _$500; but the evidence on the part of plaintiff shows, and it is not denied by the defendants, that, while the terms of the contract of sale had been previously agreed upon, yet the sale was not consummated, and the money was not paid over to MacFarlane until the instrument in question had been signed and delivered, so that the contract in suit was made in contemplation of the contract of sale.

In construing the word “earnings,” as used in the statute of Wisconsin, exempting GO days’ earnings of a debtor for his personal services from execution and attachment, when necessary for the support of his family, Mr. Chief Justice Dixon, in Brown v. Hebard, 20 Wis. 344 (91 Am. Dec. 408), says: “It is not easy, perhaps, to" determine the precise application of this word as used in the statute. I think a correct definition to be the gains of the debtor derived from his services or labor without the aid of any capital. If the debtor has no capital, and no credit contributing to increase his profits, except the credit arising from the labor or services in which he is presently engaged, and out of the proceeds of which his obligations on account of such labor or service are to be discharged, then I think his net receipts or gains from such labor or services m§y fairly be accounted ‘earnings.’ ■ If, for example, the man whose business it is to dig a well, sink a mine, erect a house, run a raft of lumber, or a ferry-boat, or to perform any of the numerous kind of work in which the assistance of others is necessary, employs others, as he must do, to assist him, and who are to be paid as he himself is paid, out of the proceeds of the work, it seems to me that what remains after the others are paid must be regarded as his ‘earnings.’ ” See, also, Campfield v. Lang (C. C.) 25 Fed. 128.

3. The instrument in suit, it will be observed, is not signed by plaintiff, but by the defendants only, and hence the language thereof is the language of the defendants, and this fact is of some importance in construing the instrument. “Where the true import and meaning of a written instrument is doubtful, and the intention of the parties cannot be determined from its language, the right doctrine is that it should be construed most strongly against the person using the doubtful language, and in favor of him who has been misled and advanced his money upon it: Barney v. Newcomb, 9 Cush. 46; McFadden v. Friendly, 9 Or. 222.

4. Upon the face of the instrument, then, it seems to us, the parties intended net profits when using the word “earnings.” But if there was any doubt remaining upon that point to he resolved by a resort to parol testimony, the conclusion is irresistible from the consideration of defendant MacFarlane’s evidence alone that such was the intendment of the parties. He says: “I guarantied that if he went in there he would make $500 in that sevén months, provided he done it in a businesslike manner.” And it appears from all of the evidence that it was understood by the parties when making their contract the plaintiff was to have an assurance of a return of his money from the net proceeds of the business, and we so interpret their contract.

5. It remains to be considered whether plaintiff has conducted the management of the business “in a faithful, business and workmanlike manner,” as provided in the contract so as to entitle him to recover. Just what this phrase means is somewhat uncertain. Defendants contend that plaintiff should have attended to the rafting of the logs' himself, and that it was reasonably possible for a person skilled in that work to have rafted all the logs delivered there in the seven months without the aid of others, and they have offered testimony that tends to support that claim. But the contract does not require him to do that. He has agreed, or rather defendants have required of him, as a condition to the guaranty, that he shall “conduct the management” of the boom, which does not necessarily mean that he shall do the work himself. He has complied with that condition'when he has shown that he gave to the management of the boom his personal attention and by rendering-such reasonable personal services thereabouts as he was able and qualified to give. - Plaintiff was not an experienced raftsman and for about two years preceding the date of the contract had been a clerk or agent for the Ilwaco Railway & Navigation Co., at Ilwaco. MacFarlane had been acquainted with plaintiff during all that time, and prior to the making of the contract plaintiff made no representations to him that he was a raftsman. Under these• circumstances, then,.MacFarlane had no right to ' assume that plaintiff was skilled in rafting logs; and, in fact, he did not act on that assumption, for he says he did not know whether plaintiff was skilled in that work or not.

The testimony shows quite clearly that plaintiff assiduously attended to the care of the boom, giving it his undivided personal attention, and performing such work as he was able to do, and, in fact, during the last three months he performed ¿11 of the work himself. During the first four months of the period, when he needed assistance, he employed the same men MacFarlane had employed to assist him when he turned over the management of the boom to plaintiff on December 19, 1904, and he paid them the same wages. . So that we think the business was managed, by plaintiff in a faithful and reasonably businesslike manner. It is not claimed by defendants that the work was not done in a workmanlike manner, or that any loss was occasioned by any neglect or deficiency in that respect. It appears from the evidence that at the time of the transfer- the railroad company was under a contract to deliver 2,000,000 feet of logs at the boom each month until August 1, 1905, and that was the reason the contract of guaranty was made to terminate at that time. But, soon after the making of the contract, the railroad company failed from some unexplained reason to make delivery of more than about 500,000 feet, on an average, per month. This was the cause of plaintiff failing to make the anticipated profits. The evidence shows that the total receipts were $534.55, while the total expense was $747.55, that is, the actual operating expense exceeded the entire income by $247.14.

It follows that the decree of the circuit court should be affirmed. Affirmed.