Mayrant & Co. v. Marston, Brown & Co.

67 Ala. 453 | Ala. | 1880

STONE, J.-

— It is contended for appellant that the written contract signed by the two firms, bearing date November 22d, 1875, does not express the whole agreement, but that there was an additional stipulation by Marston, Brown & Co., to allow B. W. Mayrant & Co. to use an idle compress controlled by the former, in the event that the latter broke down, or got out of working order. We think this position untenable, for two reasons : First, the proof fails to convince us there was such agreement; second, where parties reduce their contract to writing, all prior negotiations not carried into the writing, are presumed to be abandoned.— Winston v. Browning, 61 Ala. 80; 1 Brick. Dig. 865, §§ 866-7-8.

The agreement, out of which the present controversy grew, does not constitute the two firms partners inter sese. Neither firm is to share in any expenses or losses incurred dr sustained by the other. To constitute a partnership between themselves, parties must stipulate for a community of risks, as well as a partition of gains. — Smith v. Garth, 32 Ala. 368; Meaher v. Cox, 37 Ala. 201. Under the contract in this case, neither contracting party is bound to contribute anything to the expenses or losses of the other. Neither was bound to aid the other in the performance of any work their several patrons might intrust to them. They only agreed to divide equally the profits of their several establishments, after setting apart to each the profits of compressing an agreed number of bales of cotton, to cover the expense of the season’s work, and forty cents a bale for all cotton each might compress above that agreed number, to cover expense of handling. So clearly did the parties contemplate keeping their business separate, that they inserted this clause in their agreement: “ The business of our respective firms to be conducted entirely separate in all respects.” Good faith, and the implications of this contract, required that each firm should exert itself for the promotion of the general interest— that neither should obstruct or embarrass the other in the conduct of its business ; but neither was bound to render to the other any active assistance in the performance of any contract, or to supply any machinery for the purpose.

It is objected that the Chancellor should have instructed the register to bring into his account only the net sum of the shipping charges, and not the gross sum. There is a want of evidence in the record to support this objection, evén if under the terms of the contract it could be entertained. If there was any expense incurred by the compress company in the matter of shipping the cotton, it is not shown. And the language of the contract seems to include both the shipping and compressing, in the clause which allows forty cents per bale, “ for the expense of labor and handling cotton.”

We find no error in the record, and the decree of the Chancery Court is affirmed, with damages.