19 Md. 98 | Md. | 1862
delivered the opinion of this Court:
The appellees sued the appellant on the 26th July 1858. The nar. contains the usual common counts, in the form prescribed by the Act of 1856, ch. 112, and a special count on an agreement. The defendant pleaded :
1st. That lie never was indebted as alleged.
2nd. That he diet iiot agree as alleged.
The plaintiff’s original firm were the ship’s husband, of two vessels, belonging to the defendant, which were placed under their management and control, on the terms and conditions in two papers, marked N E. & Co., No. 1, and N. E. 8s Co., No. 2.
N. E. & Co., No. 1.
Baltimore, 18th October, 1852.
Nathan Rogers &, Go., Merchants, Baltimore, have full authority to take charge of the new "barque “Linda Stewart” and brig “Thomas E. Stewart,” both of Baltimore, uniter an arrangement I have made with them, as my agents in the control and management thereof, and the captains and all concerned, will govern themselves accordingly, (liven under my hand. Signed—James A.-Stewart.
N. R. & Co., No. 2.
Baltimore, Oct. 15th, 1852.
James A. Stewart, of Cambridge, Dorchester county, Md., being the owner of a new barque which he has had built and fitted out, called “Linda Stewart,” and also of the brig “Thomas R. Stewart,” has placed the said vessels with tis, to he managed by ns, as his agents, to the best advantage, according to our judgment, and to facilitate the better employment of the said vessels, and to secure us for any necessary advances that we, may make for the said ves•sels, or to James A. Stewart, or any liabilities that we may
N. Rogers,
Nathan Rogers, Jr.
Tost:—Henry Hartbin. Charles Butler.
These papers being admitted in evidence, the appellees proved that Nathan Rogers, Nathan Rogers, Jr., and Charles Butler, constituted the firm of Nathan Rogers & Go., from the 15th October 1852, (the date of the agreement,) to the 31st December 1853, and transacted all business connected with the management of the vessels, in said firm’s name. That Nathan itogers, Jr., retired from the firm on the 31st December 1853, Nathan Rogers, Sen., and Charles Butler remaining, and constituting the firm until 1st March 1856, when John P. Rogers became a partner, and Nathan Rogers, Sen., Charles Butler and John P. Rogers constituted the firm from 1st March 1856, to July 185?, when Butler retired, and Nathan Rogers, Sen., and ■John P. Rogers composed the firm from the 1st July 185?, to 2nd July 1858, when N. Rogers, Sen., died, John P. Rogers surviving. That Charles Butler and N. Rogers, Jr., are still living; that John P. Rogers proceeded, as surviving partner, to settle the business of Nathan Rogers & Co., under the name of Nathan Rogers & Co., and continued the same business in the same name, without having any partner.
The appellee further proved that the original firm of N. Rogers & Co. took charge of the brig and barque belonging to tlic defendant, by virtue of the agreement of the 15th and 18th October 1852, and that the brig (until she was lost, shortly after the 2?th December 1853) and tbe said
The plaintiff, by his counsel, having announced that he had closed his testimony, except as to rebutting evidence, the defendant, by his counsel, made the following motion to the Court:
“The defendant, by his counsel, moves the Court to rule' out all testimony that has gone to the jury in reference to accounts current, or the items of account between Naths©
The defendant having offered certain testimony, and closed, submitted the following prayers, No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. T:
Prayer No. 1.—The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the evidence, that Nathan Rogers and John P, Rogers, named in the declaration, on the 1st day of July i BS1?, formed a partnership for the purpose of conducting the shipping business, under the name and firm of N. Rogers & Co., and that the said Nathan Rogers, before the institution of tliis suit, departed this life, leaving the said John P. Rogers his surviving partner, that under the pleadings in this cause they cannot find a verdict for the plaintiff on account of any transactions between the defendant and any firm composed of other partners, unless they further believe, from the evidence, that subsequently to the formation of the said first mentioned firm, the defendant has acknowledged an indebtedness on account of said transactions, and expressly promised to pay the same to the said first mentioned firm, or to tlie plain tiff, as the surviving partner thereof.
Prayer No. 2.—-The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the
Prayer No. 8.—That if they "believe, from the evidence, the facts mentioned in the preceding prayer, that they cannot find a verdict for the plaintiff, oil account of any transactions connected with the management of the said vessels^ or either of thorn, which occurred subsequently to the formation of the said last mentioned firm of Eathair Kogers and John P. Kogers, trading under the name of N. Kogers &s Co., unless they further believe, from the evidence, that the defendant l',new who the partners were who composed the said firm, and v-ith such, knowledge recognized the said firm as- Ms agents, for the management of the said vessels", or either of them.
Prayer No. 4.—That if they believe, from the evidence, that the defendant placed the barque “Linda SteWart,” of which he was the owner, under tlie management and control of the firm of N. Kogers & Co., by virtue of tbe contract, dated on the 15th day of October 1852, and offered in evidence by the plaintiff, and that the said firm was at that time composed of Nathan Kogers, Nathan Kogers, Jr., a'nd Charles Butler, and that afterwards any changes were made in the partners of the said firm, either by the retire* ment of one or more of the original members thereof, or by the introduction of a new member therein, and that after such change in said, firm, any losses occurred to the said
, Prayer No. 5.—The defendant, by his'counscl, prays the 'Court to instruct the jury, that all the evidence offered by the plaintiff, as to any charge for interest, are matters Within their discretion, in the consideration of the claim of •the plaintiff, unless they should find, from the evidence, that there was an express agreement to pay interest, and that in no event -should they allow as interest any item of «charge for the same, whore more than six per cent, per annum has been claimed upon any loan, advance or other indebtedness, unless they should also find, from the‘evidence-, that such item of interest is charged in a foreign country, and that such rate of interest as charged, is allowed by the laws thereof.
Prayer No. 6.—The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the •evidence, that John P. Rogers made sale of the barque '“Linda Stewart,” without authority; that then he was guilty of an unlawful conversion of the same, and no charge on ■account of indebtedness in the management of the same should be allowed by them; that if they believe the said barque-belonged to James A. Stewart, the defendant, that .the said John P. Rogers 'Could not make sale of her without'authority from'the said Stewart, and if ho did so, he was a trespasser ; that the agreements (see ante page 105) between James A. Stewart dhd Nathan Rogers, Sen., Na
Prayer No. 7.—That the plaintiff is not entitled to claim commissions for any acts done by him, or those under or through whom he claims, as the agent or agents of the defendant, if the jury should believe, from the evidence, such acts to have been so done ; provided they further believe, from the evidence, that in the performance of said acts, the party performing the same was guilty of such negligence or unskilfulness that the defendant derived no benefit therefrom.
The Court made an addition to, and modification of, the 7th prayer, and granted said 7th prayer with the said addition and modification, which is as follows, to wit:
That the plaintiff is not entitled to claim commissions for any acts done by him, or those under or through whom he claims, as the agent or agents of the defendant, if the jury should believe, from the evidence, such acts to have been so done ; provided they further believe, from the evidence, that in the performance of said acts the party performing the same was guilty of such negligence omnskilfulness that the defendant derived no benefit therefrom ; but if the jury shall believe that in the performance of said acts, the piirty performing the same therein acted with a proper knowledge of, and a proper regard for, the interests of the defendant, then the said plaintiff is entitled to claim commissions for said acts so done, notwithstanding no benefit may have resulted therefrom to the defendant.
The Court granted the 5th prayer of the defendant, but rejected the 1st, 2nd, 3rd, 4th and 6th, and granted the 7th with the modification as above, from which refusal to grant the said prayers and modification of the 7th, the defendant excepted.
The question or point presented by this exception, is-substantially the same with those in the 1st, 2nd and 4th prayers, viz., that in the absence or failure of evidence off an acknowledgment of indebtedness and express promise by the defendant to pay the plaintiff, the evidence as to the accounts and the items enumerated in the motion should be excluded, because those accounts were “res inter alios actce and the causes of action represented by those accounts could not be recovered by the plaintiff, without evidence of such < acknowledgment of indebtedness and express promise by the defendant. The prayers above referred to, being based upon the same theory, (that an, acknowledgment and express promise are necessary to be proved, to enable the plaintiff to- recover,) we will consider them and the first exception together. The position assumed by the defendant in his motion and those prayers, if correctly interpreted, is not tenable, dioses in action, between partners and others, like choses in action between individuals, rest in privity of contract, and, at common law, could bo sued on only in the name of the parties thereto, or their legal representatives.
Exceptions to the rigid rule of the common law, growing out of the doctrines of equitable actions and implied assumpsits, have long been recognized and adopted. In Surtees vs. Hubbard, 4 Esp. Rep., 203, Lord Ellenborough said: “Choses in action, generally, are not assignable. Where a party is entitled to money, and assigns over his interest to another, the mere act of assignment does not entitle the assignee to maintain an action for it. The debtor may refuse his assent; he may have an account against the assignor, and wish to have his set off; but if there is any tiling Wee assent on the part of the holder of the money,
The defendant’s third prayer refers to the agency established between the original firm of Nathan Rogers & Co. and the defendant, and declares that the transactions connected with the management of the vessels, which occurred subsequently to the formation of the last mentioned firm of Nathan Rogers & Co., are not subjects of charge against the defendant, unless he knew who the partners were who composed the said firm, and with such knowledge recognized the said firm as his agents. In contracts of a continuing nature, as guaranties for advancements to be made, or bonds for the faithful discharge of a duty, questions often arise as to their true extent and operation, when there has been any change of the partners, by the retirement of the old, or the admission of the now one; for instance, whether the guarantee.would be liable either to the old firm or to the new, for any such advances or credits, after any such change?
“It has been held, that the guarantor would not be liable therefor ; and that no such guaranty ought to be extended beyond the actual import of its terms, but that it ought to be limited to advances and credits made by the original firm only.” Story on Part., sec. 245. In Weston vs. Barton, 4 Taunt. Rep., 613, 682, Sir James Mansfield said, “It
This prayer is only an assertion of the common law maxim, “delegatus non potest delegare.” The agency, like the accounts, might have been transferred with the knowledge and assent of the defendant, from the old to the new firms, but this transfer and assent must be manifested by some evidence that the defendant know who constituted the new linns, and recognized the said firms as his agents in the management of his vessels, or either of them. Unlike the prayers before mentioned, this did not impose on the plaintiff any illegal requirements ; did not prescribe any mode of proof, positive or presumptive, of the knowledge and recognition prior or subsequent, but required the jury to find facts which, it seems to us, were material to the issues, and, as such, should have been granted.
Prayer No. 6, assumes that the plaintiff forfeited all claim to charges for services, management, advancement, &c., if the‘ jury believed he sold the barque without authority. This assumption is erroneous. The plaintiff might, by the course of dealing between the defendant and
The modification of the 7th prayer, when taken in con
We concur with the Court below in its rulings on the first exception, and in the rejection of the appellant’s 1st,, 2nd, 4th and 6th prayers, and modification of the 7th, but think there was error in rejecting the defendant’s 3rd prayer, and therefore reverse the judgment and remand-the cause upon procedendo.
Judgment reversed and cause remanded.