Staples v. Wheeler , 38 Me. 372 ( 1854 )

Howard, J.

— By the contract on which this suit was brought, the defendants on the second part, in consideration of the advances of money made to them by the plaintiffs, on the first part, agreed to go to the “ gold diggings, in California, and there to labor with all diligence and fidelity to get gold, in any honest manner, for the space of one year from their ai-rival there. The proceeds of said labor, whether in digging gold, laboring or speculating, to be divided equally between the tw© parties hereto.” After some provisions, net material to the present inquiry, the contract states, that, “it is further understood, that if either of the parties of the second part should die, his share is to be paid from the time of his decease.”

The only question arising on the plaintiffs’ exceptions is, whether the expenses of the sickness of Wheeler, in California, should be deducted from the proceeds of his labor before the contemplated division should be made between the parties to the contract. The instructions required the deduction to be made, and the verdict was returned accordingly.

We are not called upon to determine what might have been an equitable arrangement between these parties, but rather, to ascertain the meaning of the contract which they chose to execute. It was not an undertaking- in which the parties formed a joint company to share profit and loss 5 or in which the net proceeds only of the enterprise were to be divided. But each party was to have an independent interest in the proceeds of the labor.

By the terms, “proceeds of said labor,” were intended the amount, income or products of the labor. Such is the plain import of the expression, and it harmonizes with the literal meaning of the term proceeds. No provision appears to have been made for sickness, or other incidental expenses of the defendants, except by the money advanced. During sickness, each party would fail of the .benefits anticipated from the labor of the defendants; and if they had been disabled by sickness from performing any labor, and so have acquired no proceeds, the plaintiffs would have lost their money advanced, and the defendants their time and expenses. Neither repayment nor remuneration could have been successfully claimed. Each party had its peculiar hazard' in the enterprise. One risked the advancement, and the other the voyage, time and labor. Beyond that the contract is silent, so far as risks and expenditures are concerned. No such deductions as are claimed were provided for by the contract, and none should be made.

The defendants except to the ruling of the presiding Judge, admitting the contract produced, in evidence, against their objections. But although the name of one of the plaintiffs is omitted in that part of the contract describing the persons composing the party of the first part; yet it appears that the one so omitted made a part of the advancement, and signed the contract before it was signed by the defendants, and became a party to it, de facto and de jure, when it was executed. There is then no material variance, but the instrument described in the declaration, is the same that was offered in evidence, and the same that was executed by the parties.

The parol evidence of a receipt given by Pillsbury, was properly rejected;, because the receipt was-the best evidence of its own terms, and there was no proof offered of its loss, or which would authorize the introduction of secondary evidence of its contents. And if a receipt such as is copied into the exceptions, had been produced, it could not have been admitted to affect the rights of the plaintiffs ;■ for there-was no evidence that it purported to be signed, or in fact was given by Pillsbury, as their agent.

We perceive no valid objection to the admission of the testimony of Lane.

The defendants’ exceptions are overruled. But, although we sustain the plaintiffs’ exceptions, yet, under the agree-ment,. the-verdict is to be amended and increased by adding to the amount the sum of two hundred and ninety-seven dollars and sixteen cents; and the plaintiffs are entitled to judgment accordingly.

Shepley, C. J., and Tenney and Hathaway, J. J., concurred.