Smith v. Ewing

Opinion by

Mr. Chiee Justice Paxson,

The specifications of error in this case are too numerous to be considered seriatim. Grouped together they raise but two important questions, viz.: 1st. Was the appellee entitled to an allowance of three dollars for machines sold by him prior to the 1st day of January, 1883, upon which the sum of twenty dollars had not been paid anterior to date; and, 2d, Was the appellee entitled to ten per centum of the actual capital of the concern at the time of dissolution, or was he entitled to ten per centum of a guaranteed capital of $100,000 ?

Both of these questions were decided in favor of the appellee by the master, in which he was sustained by the learned judge of the court below.

It appears that on the 25th day of April, 1881, the parties entered into an agreement determinable upon thirty days’ written notice by either, by which Smith agreed to become head salesman and manager of canvassers in the retail department of Ewing’s business. He was to receive “ in full compensation for all of services rendered a commission of three dollars upon each completed sale effected at retail, either on floor of store, or by any one of the canvassing force, and also a like commission of three dollars shall be allowed upon each lease accepted by the said D. S. Ewing from the above-named agencies when twenty dollars shall have been paid thereupon by the lessee thereof.”

It is conceded that under this agreement the appellee acted until the 1st day of January, 1883. In the meantime he had made sales of a number of machines, upon some of which, at the last mentioned date, the stipulated price on account of twenty dollars had been paid. Upon other sales the twenty dollars had not been paid. On the 1st day of January, 1883, the parties entered into a new agreement, determinable at any time upon thirty days’ written notice by either, with a stipulation, however, that the party giving such notice should pay a forfeit of five hundred dollars to the other. By this agreement the appellee was to act in the same capacity as before, but it was stipulated that he should receive in full compensation for all services rendered a commission of five per cent upon all net cash receipts arising from the leasing and sale of sewing machines to parties residing in the county of Philadelphia. All allowances for old machines, discounts to customers, and commissions or salaries due to the party effecting the sales or lease being first deducted from the retail or published prices at which the machines were to be leased or sold. Simultaneously with the making of this new agreement, the following words were written across the face of the agreement of 1881, and signed by the respective parties thereto :

“ This agreement is by mutual consent determined and abrogated, all benefits arising to either party being fully satisfied.” On the 22d day of May, 1885, the agreement of January 1, 1883, was canceled and abrogated by mutual consent. A new agreement was made upon the same day, the particulars of which are not important in the present controversy. In the end it was canceled, and a new agreement dated March 16,1886, was substituted therefor. It was upon this last agreement that the appellee rested his claim of partnership and his demand for an account. We will refer to it later.

The difficulty upon the first branch of the case arises upon the construction of the indorsement upon the agreement of 1881. Upon this point the parties differed radically in their testimony, each stating at some length what he understood it to mean at the time he executed it; the appellee contending that it was not his understanding that it was intended to cancel his claim for sales made under the agreement of 1881, while the appellant was equally emphatic in his testimony that it was a full settlement of any such claim. There was no corroboration of either witness in this respect. There was only the assertion of the one and the denial of the other.

There is no ambiguity in the language used by the parties as contained in the indorsement upon the agreement of 1881. This was conceded by the learned master who says: “ The evidence of H. H. Smith (appellee), varies what would have been the legal interpretation of the abrogation of the contract.” The learned master finds, however, that but for the oral stipulation the paper would not have been executed, and that the testimony of the appellee was so direct, clear and explicit as to overcome the testimony of the appellant. He further says: “ The elements of it stand uncontradicted by circumstances, and it is thought that where there is such testimony it suffices, although it be that of a party in interest, uncorroborated by any other.” It is just here the learned master appears to have misapprehended the rule in equity. To overcome the oath of the appellant there must be the oath of the appellee sustained by another witness or corroborated by circumstances which are the equivalent of a witness. It is not enough that the oath of the appellee “stands uncontradicted by circumstances,” it must be corroborated by circumstances, and there is no such corroboration in the case.

The learned master was evidently led to his conclusion upon this point because he thought that which the appellee asserted harmonized “ with what an ordinary business man would do with respect to moneys that he knew he had earned; ” that there was nothing to show that the giving up of what had been earned under the agreement of 1881 was a part of the consideration of the agreement of 1883, although the appellee had testified directly to that effect. The master also regarded the testimony of the appellant as evasive while to that of the appellee he attached more weight because of its directness.

An examination of the testimony does not lead us to this conclusion. The testimony of the appellant is as direct and explicit as we could expect. It is true, he does not give the details of a conversation, which he alleges, never occurred, but we are unable to see any such evasion or want of candor as would justify the master in rejecting his testimony. None of the reasons, given by the master for reforming this paper upon the parol evidence, is sufficient. This portion of the claim of the appellee should have been rejected.

Nor can we sustain the appellee’s claim upon the second branch of the case. The evidence of the partnership was contained in a letter written by the appellant to the appellee, and which was accepted by the latter. The letter is as follows :

“ Philadelphia, March 16th, 1886.

“ Mr. H. H. Smith, Philadelphia, Pa.

“ Dear Sir—In no wise modifying or changing the terms of the existing contract between us, I hereby offer you the option of acquiring an individual one-tenth interest in say $100,000 worth of the following assets of my business, viz.: store-fixtures, defaulters’ accounts, sewing machine leases, sewing machines, new and old merchandise, patterns, accounts and bills receivable, cash, etc., as recorded on my books January 1st, 1886, upon the following plan, viz.: I will place to your credit upon the ‘ capital account ’ of my business the sum of $10,000 and will debit your personal account with an equal amount, say $10,000. Legal interest as against your ‘ personal account ’ shall be deducted from the profits accruing upon your ‘ capital stock ’ and the balance shall serve to liquidate your ‘personal account.’ Whatever of loss and shrinkage may result in any and all of the above named assets shall be regarded as the price and value of the ‘good-will’ of the business. This proposition to you being wholly gratuitous, I reserve the right always to cancel so much thereof as may remain at the time incomplete.

“ I would further suggest, if acceptable to you, that all the benefit of this arrangement shall commence on the first day of January, A. D. 1886.

“Yours very truly,

“D. S. Ewing.”

We think the learned court below and master erred in their construction of this paper. We regard its meaning as clear. The parties evidently regarded the assets at that time as worth a hundred thousand dollars. Among those assets, however, there were some items as to which there might be a shrinkage. The value of the good-will was not taken into an account in estimating the value of the assets. Under these circumstances, it was doubtless thought reasonable that “ whatever of loss and shrinkage may result in aiijr and all of the above-named assets shall be regarded as the price and value of the goodwill of the business.” As the appellee had paid nothing for the good-will, whatever may have been its value, it does not seem unreasonable that the shrinkage, if any, should be set off against the good-will. That this clause of the agreement in regard to shrinkage was intended to apply only to the assets as they existed at the time the agreement was entered into, is clear from the language of the agreement itself. In terms it applies only to “ all of the above-named assets,” and cannot, by any reasonable construction, be regarded as applicable to shrinkage on future assets. The claim of the appellee would throw all the losses up to the time of dissolution upon the appellant, while the appellee would be entitled to a guaranteed capital of $100,000, even though the whole of it should be lost by business reverses or bad debts. Few persons would be willing to engage in business upon such terms. The most that the appellee can claim under the agreement is ten per centum of the actual capital of the concern as it stood at the time of dissolution. The appellant can only be charged with a shrinkage of the original assets or those in existence at the date of the agreement.

It is not needed that we should consider the state of the account between the parties. It will have to go back to the master and be restated in accordance with this opinion. The costs will depend upon the result.

The decree is reversed at the costs of the appellee.