Bomeisler v. Dobson , 5 Whart. 398 ( 1840 )

The opinion of the Court was delivered by

Rogers, J.

Where the terms of a special agreement have been performed by the plaintiff, the law raises a duty, for which a general indebitatus assumpsit will lie. In general, the declaration ought to state (he agreement where it is special; but where it has been so far performed, that nothing remains but a mere duty to pay money, which it is for the plaintiffs to show, a general count is all that is required. Here the performance of the plaintiff’s stipulation was left by the Court to the jury, who have found that the plaintiff has fully complied with his part of the contract. The contract being executed, there is nothing in the first exception. 2 Binn. 47. 10 Mass. R. 387.

. It is contended that there is error in not instructing the jury that the plaintiff and defendants were partners, and that account-render and not assumpsit, was the proper remedy. The plaintiff gave in evidence the agreement of the 2d of January, 1829, and certain letters and then rested. The defendants proved the acknowledgment of the plaintiff that he was equally interested with the Peter-mans, not with the Bomeislers, in the first shipment, and also in the second, and third. They also gave in evidence the agreement of the 1st of January, 1829, a bill of sale of the one-fourth of the brig of which Captain Dobson was master, together with his several accounts-current with Messrs. Peterman and Bomeisler & Brother. If the defendants have been content to submit this case on the construction to be given the agreement of the 2d of January, 1829, they would have had but little reason to complain of the decision of the Court; for judging of the transaction from that agreement, disconnected from the defendant’s proof, we concur with the District Court in thinking, that Dobson was the agent of the defendants and not the partner, and as such was entitled to wages at the rate of forty-five dollars per month, during the time he was employed in their service. But the doubt arises Irom the introduction of other parol and written testimony by the defendants themselves; and I cannot conceive that they have any just ground of complaint, for leaving the whole case, consisting as it does, of parol and documentary evidence to the jury. No special direction is requested ; and had the Court undertaken to have given such instruction, they would perhaps have exposed themselves to an exception diametrically opposite to the one now’ made. The direction would appear to me to fall in with the course ppinted out by the defendants themselves, and in compliance with their views of the case. I am free to confess, that from the investigation which I have given this transaction, I should, although with some hesitation, come to a conclusion different from that of the jury. But with their decision we have nothing to do; as an error of their’s, if there be one, can only be corrected on a motion for a new trial. And we have the less reluctance to leave the judgment stand ; as, after all, it resolves itself into an objection to form; as the whole merits of the controversy could be, and we have reason to believe were as well tried, in this' action, as they would have been in an account-render. The Court instructed the jury distinctly, that the plaintiff was only entitled to be paid for his services, provided he faithfully performed what he undertook to be performed by his agreement. They enumerated with great particularity, the various duties contained in the agreement, and put it to the jury to say, whether he had faithfully performed them. After the verdict, we are bound to believe that in all respects he has lived up to his contract; and that he has faithfully accounted for, and„paid over the proceeds of the different shipments consigned to him.

Judgment affirmed.