40 Vt. 460 | Vt. | 1868
The opinion of the court was delivered by
The principal question in dispute before the referee was as to the mode of measuring the stone dressed by the plaintiffs under a written contract at a specified price per foot. The defendant insists that this question is conclusively settled in his favor by the award of one Hale, to. whom he claims the question was submitted for final decision. The plaintiffs claim that St. Miartin never agreed to submit the question to Hale, for decision, nor consented to such submission ; aud the referee so finds the fact; unless by his relation as partner he is in law bound by the agreement made by his co-partner
The question then is whether one partner by virtue of his relation as partner, has authority to bind his co-partners,by a submission of a co-partnership matter to arbitration, so as to make the award in pursuance of such agreement binding on the firm. We think that upon principle, no such power is implied from the co-partnership relation. The exigencies and convenience of business do not require a partner to possess such power. The following cases recognize this principle, and in some of them the point was directly involved and decided, although in others the partner, in making the submission, did not.make it in the name of the firm: Steele et al v. Salt, 11 Com. L. 50; Harrington v. Higham and others, 13 Barb. 660; Buchoz v. Grandjeau, 1 Mich.; Onion v. Robinson, 15 Vt. 510. Other cases to the same effect might be referred to. Elementary authorities lay down the same principle. It has been decided in this State that one partner has no authority by virtue of the relation of partner, to accept service on a writ for himself and partner. The reason seems to be quite as strong against the power of a partner to create a court and bind his co-partner by the decision ; since the very foundation of an award is the agreement of submission. The ease therefore must be decided on its merits unaffected by the award.
The question then is, whether the referee erred in rejecting certain evidence offered by the defendant in relation to the mode of measuring the work; that is, as to the meaning of the words, “faceof the
The only remaining question is whether the $25. for the use of tools should be allowed and deducted from the claim of the plaintiffs. ■The facts reported show clearly that in justice and equity it should be allowed. By the contract the plaintiffs were to furnish the tools to perform the work. The plaintiffs should account for the use of the tools furnished by the defendants, unless the objection that the defendants did not, until the commencement of the suit, intend to claim it, is a bar. Generally there can be no recovery for what was understood by the parties at the time as a gratuity; and so generally where the party making the claim so intended it. In this ease it appears satisfactorily that the expectation of the plaintiffs was that they were to account for the use of the tools ; for in their specification filed in the cause in court, they credit the $25. for such use of tools. It does not appear that the plaintiffs ever knew or supposed that the defendants had any other intent or expectation until it came oiit on trial before the referee. ' So that it cannot be said that the plaintiffs used the tools on the faith that it was to be a gratuity. We do not regard a specification filed in court as so far conclusive against the party filing it, as to be beyond the power of the court to allow it to be amended in case of a mistake. A state tff facts might appear before a referee which would justify the court in not holding the party strictly to the specification in case of mistake, although no amendment of the specification had been previously made. In this case there was no mistake on the part of the plaintiffs in relation to the specification as to this item, except they were not aware of the intention of the defendant not to charge it. Whatever force there is to the objection to this item is purely technical and against the equity and justice of the case. Whether we look at this item as an abatement of so much of the plaintiffs’ claim for not furnishing tools as
The $5,00. item is not insisted on by the defendant’s counsel.
Judgment reversed and judgment for the plaintiffs for the larger sum, deducting the $25.