214 Pa. 117 | Pa. | 1906
Opinion by
James Herbert Stitzer, the plaintiff and appellant, is a civil engineer, and in the early part of 1903 was in the employ of the city of Philadelphia.. Edward F. Fonder, the defendant and appellee, is a contractor, and in 1903 and prior thereto had taken contracts for municipal work from the city of Philadelphia. By a contract in writing, dated April 27, 1903, entered into by
This bill was filed by the appellant setting up the contract, alleging that he had performed his part thereof and averring that he had not received his share of the profits thereunder, and praying for an accounting and discovery. The bill sets out the agreement at length and the notice of the appellee of its termination, avers that during the continuance of the agreement that the appellant devoted his entire time and 'his best services to the execution of the work upon contracts obtained for the joint benefit of the parties, that a large number of contracts were obtained which were taken in the name of the appellee and his company, that he received from the profits of these contracts $100 per month, part of his compensation mentioned in the agreement between him and the appellee, that the profits of the first year were little but for the second year would amount, in the belief of the appellant, to more than $40,000, and that all the assets and monej's belonging to the
The appellee filed an answer in which he admits the execution of the agreement in question, denies that there was any partnership between him and the appellant, alleges that it was the intention of the parties to enter into an agreement whereby the appellant should solicit work for the construction of underground conduits, sewers and drains, and for any and all contracts for the said work so secured by the appellant he and the appellee should enter into a contract for the construction of the said underground conduits, sewers and drains on the terms and conditions set forth in the agreement of April 27. The answer further denies that during the existence of the agreement there were any contracts for the construction of underground conduits, sewers and drains obtained by the parties, and denies that tbe appellant devoted his time and services to the execution of work upon such contracts. The answer admits that the appellee and his company obtained a large number of contracts for general construction work during the continuance of the contract. It denies that the appellant received $100 per month from the profits arising from any contract entered into in the name of the appellee or his company, but admits that he was paid that sum as compensation for bis services as an engineer until March 24, 1905. It avers that the agreement of April 27, contemplated the payment of profits only on contracts for underground conduits, sewers and drains, but alleges that no contracts for such work were obtained and that no profits were realized from such contracts.
After the testimony of the appellant had been heard on the trial in the court below, the learned judge granted a motion to dismiss the bill. Subsequently the appellant moved the court to change and vacate the motion or decree of dismissal, which was refused. The trial judge held that the agreement, if a partnership at all, applied only to contracts that the parties jointly entered into, that the evidence failed, to disclose that they entered into any contracts jointly, and therefore the bill should be dismissed. In concluding his opinion he says : “ Applying that contract to the testimony here, there have appeared no contracts that they have jointly entered into or that they have together entered into, and I think the fact that- Mr. Stit
We do not agree with the learned trial judge in his construction of the agreement of April 27, 1903. We think it was error to hold that the plaintiff was only entitled to recover a share of the profits on contracts which he and the appellee had taken in their joint names. This error permeated the whole case and necessarily led the trial judge to a wrong conclusion. The agreement in question does not provide in terms or inferentially that the contracts in which the parties were to be jointly interested should be taken in their joint names. On the contrary, we think it clear that the test whether a contract was to be regarded as joint and as having been entered into by the parties, was whether “ Fonder shall advance all the moneys required and the said Stitzer, in lieu of advancing money, shall devote his entire time and his best services to the execution of the work thereupon.” Such is clearly the criterion of a joint contract established by the agreement itself. Any and all such contracts taken during the continuance of the agreement of April 27 were covered by the terms of that agreement, regardless of whether they were taken in the names of Stitzer and Fonder or in the name of either of the parties, or were taken by Fonder in the name of anotheroparty. On all such contracts Stitzer was entitled to receive $100 per month and, in addition thereto, for the first year, ten per cent, and for the subsequent years, during the life of the contract, twenty per cent of the net profits accruing from the business.
It is clear from the terms of the agreement that whatever contracts were taken by Fonder on which he paid Stitzer $100 per month for his.services, the latter is entitled to his percentage of the actual net profits accruing therefrom. ' The agreement provides that Stitzer shall receive $100 per month as compensation for his services, and in addition thereto a percentage of the profits. During the life of the agreement Stitzer was to “ devote his entire time and his best services to.,the
Under our interpretation of the agreement of April 27,1903, the appellant was clearly entitled to the relief he asked for. The material averments of the bill were not denied by the answer. The rights of the parties are to be determined by the written contract. The appellee does not allege fraud, accident or mistake, and hence the parties are bound by the contract as it is written. ' The answer admits the execution of the contract, but avers that, “ the said agreement of April 27, 1903, between the said Stitzer and myself contemplated the payment of the said profits only on contracts for underground conduits, sewers and drains,” and denies that any contracts for the construction of any such work were secured or entered into by Stitzer, or that appellee ever received any profits realized from contracts for the construction of such work. The interpretation thus put upon the agreement by the appellee is at variance, not only with its language but also with the manifest intention of the parties as disclosed by the instrument. There is nothing whatever in the agreement to show that the contracts contemplated by it were confined to the construction of underground conduits, sewers and drains. On the contrary, the agreement contemplated and included, using its own language, “ contracts for municipal and government work,” etc., and the appellant was entitled by its terms to participate in the net profits of all such contracts in which “ the said Fonder shall advance all the moneys required, and the said Stitzer, in lieu of advancing money, shall devote his entire time and his best services to the construction of the work thereupon.” Every contract brought’ within these limitations is a contract which the parties “ together enter into ” in contemplation of the agreement of April 27.
It will be observed that the appellee in his answer does not deny that he received profits from “ contracts from municipal and government work,” etc., but simply confines his denial to profits received from contracts entered into for the construe
It follows from what has been said that the 'learned trial judge of the court below, on the trial of the cause, erred in granting the motion to dismiss the bill. There was no responsive answer to the material allegations of the bill on which the plaintiff was entitled to the relief he sought. The contract was in writing and was for the court to interpret. Under a proper interpretation of the agreement, the material averments of the bill not being denied by the answer, the appellant was entitled to an accounting for all contracts entered into in pursuance of the agreement for “municipal and government work,” etc. We need not discuss or determine the effect on the trial of the cause of a responsive answer to the bill because, as we have seen, the appellee here did not deny but admitted the agreement as set out in the bill, and set up an erroneous interpretation of the contract and denied that he was .in fault under that construction of the agreement.
The léarned court below, as we understand its rulings, held that the contract between the parties created a partnership. Be that as it may, it was at least a joint venture in which there were accounts on both sides, and in which the relief at law would have been inadequate. By the terms of the agreement the appelleé was to “advance all.the moneys required” in the’ vénture, and, on the other hand, the appellant was, “ in lieu of advancing money,” to devote his entire time and his best services. It is apparent, therefore, that both parties had an account, or, in other words, there was an account on each side. ’ The venture was not a ’ single transaction, but applied to all contracts secured and entered into within two years,
In so far as the books in the possession of the appellee contain the contracts secured and entered into in pursuance of the agreement of April 27, or the accounts of transactions arising out of such contracts, they were admissible as evidence for the appellant. The testimony shows that the books were procured for the purpose of keeping the accounts of the transactions of the joint business, that such accounts were entered in them, not only by the appellant but by the appellee’s son, and that the appellee was familiar with the books. The appellant testified that three months after he and the appellee had entered into their agreement, he bought the books and started to enter the accounts of these transactions. The books, therefore, were procured and opened by the parties for the purpose of keeping their joint accounts in them. The appellant has no right to have, nor does he ask, for books containing solely the private accounts of the appellee, but he and the appellee, having established a joint business venture he has a right to demand of the
The decree of the court below is reversed, and the bill is directed to be reinstated with a procedendo.