33 P. 496 | Cal. | 1893
Appeal from a judgment for defendants, and from an order denying plaintiff’s motion for a new trial. A. W. Sisson, W. H. Wallace and Clark W. Crogker were co-partners in the name of Sisson, Wallace & Co. Wallace died intestate, October 2,1881. This action was commenced in May, 1884, against Sissop and Crocker, and, Sisson having died before judgment his executors were substituted, and defendant Crocker having died since this appeal, his executrix was substitituted in this court. The firm was organized about 1868, having its principal place of business at San Francisco, and subsidiary places of business at different points on the line of the Central and Southern Pacific Railroads during the construction and operation of those roads. The Pacific Improvement Company, the Western Development Company, and the Southern Development Company were corporations severally engaged in the construction of these railroads under contracts with the railroad companies. Sisson, Wallace & Co. were dealers in merchandise, but their principal business was procuring Chinese laborers for the railroad and construction companies, and furnishing them with supplies of food and clothing while laboring for those corporations. As Chinamen were needed for construction or repairs, orders were given Sisson, Wallace & Co. for the men, and these would be procured and forwarded. No compensation was paid by the corporations for this service, but there was an understanding that Sisson, Wallace & Co. should supply the men so furnished'with food and clothing, out of the profits of which they would be compensated for their labor and expense in procuring them. The Chinamen labored under the immediate direction of the railroad or construction company,
Mr. Wallace left surviving him, Emeline, his widow, Cora, his daughter (the plaintiffs), and a minor son. Mrs. Wallace was appointed administratrix of his estate and the guardian of the minor. Early in January, 1882, negotiations were commenced by the surviving partners for the purchase of the interest of the estate in the partnership, the offer being that they would pay the value of that interest as shown by the annual statement of the assets and liabilities, as of January 1, 1882. Mrs. Wallace insisted that she should be allowed the proportionate part of the value of the goodwill of the business, which was long established, and large and valuable, and also claimed, while admitting her inability to establish the fact that the Chinamen imported from China were so imported under a contract made before Mr. Wallace died, by which the firm had a vested right to furnish them supplies, that the profits which would accrue to the firm during the time they were to labor would amount to a very large sum, and that the estate should have its interest in these profits, or be compensated for them in the settlement. On the other hand, Sisson and Crocker insisted that there was no contract right; that all they had was
The court, after finding the uncontroverted facts, and some controverted facts which do not require special notice, upon the principal questions at issue found, in substance, that there was no fraud, misrepresentation, or concealment on the part of defendants; that they informed the plaintiffs, and the plaintiffs well knew, that defendants believed that said business was becoming very lucrative, and that during the years succeeding would yield large and increased profits; that the firm of Sisson, Wallace & Co. did not enter into any contract, nor was there any contract or agreement whatever between said firm, and any of said corporations for the importation of Chinamen, or for the securing such men in China, or the forwarding of them to San Francisco, or the collection or payment of their wages, or the reimbursement of any sums advanced to pay passage money or other expenses, of collecting or forwarding men, or giving to Sisson, Wallace & Co. the exclusive right or any right to furnish said or any Chinamen with supplies, or with the privilege of deducting the accounts of said firm therefor from the wages of such laborers; that the
Before discussing the circumstances under which these importations of Chinamen were made, it is necessary to understand the previous relation of the parties concerned. It is quite true that Sisson, Wallace & Co. did not have a contract by which they were to furnish all the labor for the construction of these roads, nor any particular number of men. These corporations were at all times at liberty to procure men through others, and, according to the testimony of Mr. Charles Crocker, did obtain men through others; but he further testified (and as to this there is no conflict) that whoever furnished men for the work had the exclusive right to furnish the supplies for them. F. S. Dauty, the secretary of the Pacific Improvement and Southern Development Companies, testified: “We looked to them [Sisson, Wallace & Co.] to get Chinamen. They employed Chinamen for us, and sent them down there, and we paid them the proceeds of the Chinese labor. Some one connected with the company would give them an order for whatever men we wanted. ’ ’ Mr. Charles Crocker testified that this mode of transacting the business dated back to 1864. No exception to it is shown to have occurred. Mr. Douty testified that it had been the custom since he knew anything about the business; that it was a great convenience to them, and enabled them to perform their business with one person instead of a large number of Chinamen who would be employed. This arrangement was, in substance and effect, that Sisson, Wallace & Co. hired the Chinamen to work for them under the direction of the construction companies, at wages agreed upon, and Sisson, Wallace & Co. were paid the whole amount of their wages. There was no contract relation between the Chinamen and the construction companies; the contract was with Sisson,
F. S. Douty testified that in 1881 and 1882 he was secretary and treasurer of the Pacific Improvement Company and of the Southern Development Company; that he remembered something of an instrument purporting to be a contract between one of those companies and Koopmanschap, and he thought Sisson, Wallace & Co., “by which Koopmanschap was to go to China, and get a thousand Chinamen; that he was to have $15 a head, to be used as compensation for his services, and the Pacific Improvement Company or Southern Development Company were to pay this $15 a head, which was to constitute his consideration.....Neither of the companies would recover any portion of it again, and these companies were to pay the transportation of the Chinamen from Hongkong, or the shipping point, to San Francisco, and Sisson, Wallace & Co. were to advance $15 a head. This $50 (transportation) and this last $15 I have mentioned were to be collected back from the Chinamen. That was the sum and substance of the thing that was to be carried out as far as it could be.” He further testified that the Chinamen were guaranteed work for a stated time—he thought one year—and were to receive $30 per month; that he signed it as secretary, and affixed the seal of the corporation; that his recollection was that it had been signed by Koopmanschap and Sisson, Wallace & Co., before he signed, but he was positive as to Koopmanschap’s signature, and that Koopmanschap and Wallace were both present when he signed it; that he signed it by direction of Mr. Charles Crocker, and that he last saw it in the hands of Mr. Wallace, and his best recollection was that it was signed by Sisson, Wallace & Co. Koopmanschap was to act ostensibly for the Southern Pacific Railroad Company, as that corporation was better known in China than the construction companies, and was furnishéd with blank contracts to be executed by him as agent, and by the Chinamen. By this contract the China-men agreed to labor for the railroad company for eighteen months from the date of the commencement of labor, at $30 per month, they to provide their own food and lodging, but to be furnished transportation and provisions from China to the place of destination, and in this contract the Chinamen
“Per ‘Gaelic.’
“Occidental and Oriental Steamship Company.” “General Office.
“San Francisco, July. 7, 1881. “Mr. C. H. Haskell, Jr., Agent, Hongkong—
“Dear Sir: Mr. Koopmanschap goes to Hongkong by ‘Oceanic,’ which follows the hearer, to arrange for the hiring of about 1,000 Chinamen for labor on the Southern Pacific Railroad. They are to be forwarded in two lots by our steamers, and contracts will be made by Mr. Koopmanschap, as per copy inclosed. The object of this letter is to make the following authorizations to you: First, advance to Mr. Koopmanschap the sum of fifteen dollars ($15) per head, to cover expenses in Hongkong; second, advance to the agent of the Chinamen fifteen dollars ($15) for each man as a bonus to him; third, issue tickets for the Chinese at the regular rates, taking the acknowledgment of the proper person. These advances are, of course, not to he made until the Chinamen go on board. Ton will then send me a draft on Messrs. Sisson, Wallace & Co., of San Francisco, for the entire expense, namely, passage money and $30 each extra in U. S. gold coin by the steamers bringing the men. In order that you may have sufficient funds to cover the advances referred to, we have cabled you to make no remittances to us at present.
“Very truly yours,
“CHARLES F. CROCKER,
‘ ‘ Vice-presid ent. ’ ’
The first shipment of the Chinamen arrived at San Francisco, September 29 or 30, 1881, two or three days before the death of Mr. Wallace, whose condition had not permitted his presence at the office of Sisson, Wallace & Co. for some weeks, and whose illness had lasted4for several months. Mr. Sisson testified that before the arrival of the steamer he had arranged with the Merchants’ Exchange to notify Sisson, Wallace & Co. of the approach of the steamer; that he met the steamer in the
The foregoing conversation between Douty and Scott, in reference to the contract and payment of the draft, occurring while the matter was still fresh in Mr. Douty’s recollection, is strong evidence, not only that the contract was made and signed by Sisson, Wallace & Co., but that it provided for the payment of these drafts by them. Besides, the letter of Charles P. Crocker to Haswell not only corroborates Mr. Douty as to the terms of the contract, but it is inconceivable that he would direct the agent of the steamship company to draw drafts upon Sisson, Wallace & Co. for each of the two contemplated shipments, amounting to $40,000 each, without a contract right so to do. If further corroboration were needed, it would be found in the fact testified to by Mr. Douty that Mr. Charles Crocker sent for him; that he found Koopmanschap and Wallace there; that Mr. Crocker directed him to execute the contract; that Koopmanschap and Wallace were both present when he signed it; that he last saw it in the hands of Wallace, and that the importations were in fact conducted in the manner and according to the terms of the contract, as narrated by him. It is true it is not stated by Mr. Douty, nor
Respondents contend that, however the fact may be in regard to a contract of the character above stated, there was such a conflict of evidence as will not permit the finding to be disturbed. It is true Mr. Crocker testified, as did other witnesses, that under the prior course of business Sisson, Wallace & Co. had a mere privilege of supplying the men which they procured; that there never was any contract; that it was simply an understanding. But that is a conclusion erroneously drawn from the facts to which they testify; and as to the imported men Mr. Crocker did not remember that there was a contract, and the defendants and their employees testified that they never knew of such, or any, contract. A careful reading of the testimony, however, will show that these witnesses also testify to conclusions, rather than to the facts which constituted the terms of the contract, and they especially em
It is further contended that plaintiffs had as full knowledge of all the facts at the time of the settlement as the defendants. Mrs. Wallace admitted that she had known for ten years the general course of the business, and expressed her belief that there must have been a contract relating to the importation of these Chinamen; but defendants denied that there was such a contract, and this they still deny. They cannot, therefore, contend that she knew of a contract which they say never existed, for to do so would be to admit what they deny. Nor does it appear that they ever informed her of the existence or contents of the letter to Haswell, which had been copied in their office; nor that the drafts had been drawn upon and were paid by them; nor that the firm advanced $15 to each China-man, and which they were to collect from his wages; nor that they were to collect and pay to the construction company the $50 passage money; nor that, so far as the evidence discloses, all the communications sent to Koopmanschap while he was in China, in relation to this business, were addressed to Sisson, Wallace & Co., all of which were known to defendants before the settlement. The finding, therefore, that they did not conceal from plaintiffs, “or fail to disclose to them, any fact within their knowledge concerning the same,” cannot be sustained.
Respondents further contend that, if the contract of settlement was procured by fraud, misrepresentation, or concealment, plaintiffs ’ only remedy is by rescission; that they cannot affirm in part and reject in part, and are, therefore, not entitled to recover on their complaint. It is true, as a general rule, that a rescission must be entire; that a party to a contract, who desires to rescind it, must surrender up everything he has received under it; and these rules apply generally to
We concur: Searls, C.; Vanclief, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and a new trial granted.