Stewart v. Rogers

Bowie, C. J., delivered the opinion of this Court: The appellees sued the appellant on the 26th July 1858. The nar. contains the usual common counts, in the form prescribed by the Act of 1856, ch. 112, and a special count on an agreement. The defendant pleaded : 1st. That lie never was indebted as alleged. 2nd.

That he diet iiot agree as alleged. The plaintiff’s original firm were the ship’s husband, of two vessels, belonging to the defendant, which were placed under their management and control, on the terms and conditions in two papers, marked N E. & Co., No. 1, and N. E. 8s Co., No. 2. N. E. & Co., No. 1. Baltimore, 18th October, 1852.

Nathan Rogers &, Go., Merchants, Baltimore, have full authority to take charge of the new "barque “Linda Stewart” and brig “Thomas E. Stewart,” both of Baltimore, uniter an arrangement I have made with them, as my agents in the control and management thereof, and the captains and all concerned, will govern themselves accordingly, (liven under my hand. Signed—James A.-Stewart. N. R. & Co., No. 2. Baltimore, Oct. 15th, 1852.

James A. Stewart, of Cambridge, Dorchester county, Md., being the owner of a new barque which he has had built and fitted out, called “Linda Stewart,” and also of the brig “Thomas R. Stewart,” has placed the said vessels with tis, to he managed by ns, as his agents, to the best advantage, according to our judgment, and to facilitate the better employment of the said vessels, and to secure us for any necessary advances that we, may make for the said ves•sels, or to James A. Stewart, or any liabilities that we may ¹⁰⁶ incur on account of tlie said vessels or order, the said Stewart has signed the necessary certificate, to enable us to have the said barque registered in our names, avo hereby agree and oblige ourselves to manage the said vessels to the best advantage, according to our judgment, for the said Biexoart, and to pay over to the said SteAvart, or his order, from time to time, as they may accrue, any and all net profits arising therefrom, charging for our services such usual commissions as are generally charged; and we further agree and oblige ourselves to surrender up the said vessels and the control thereof to Stewart, his heirs, executors, administrators or assigns, at any time when he or they may desire the same’, upon payment to us of any sum or sums that may be due to us, on account of the usual and necessary expenses of the said vessels, more than the profits arising from the said vessels, and all advances that may be made to the said Stewart or order, if any should be made, and securing us for any liabilities that Ave may incur, as aforesaid. We further agree, in case we put the said vessels, or either of them, in for one-third of the cargo on the vessel’s account, where an adequate freight cannot otherwise be obtained, the said vessels, or either of them, or the said Stewart, are to be allowed for one-third of the profits thereon, and in case of doss by the said vessel or vessels being thus interested, the said vessel or vessels, or James A. Stewart, are not to be answerable for any such loss beyond the freight of the said vessel or vessels, respectively, for each respective voyage. It being hereby understood, in any event, that although the said barque is registered in our names, by the authority of the said Stewart, for the purposes aforesaid, that Ave set up no claim to the same, or any part thereof, or to the brig £ Thomas R. Stewart, ’ ’ other than for any advances that may be made by us on her or their account, or to the said James A. Stewart or order, or for liabilities incurred as aforesaid, but the said barque c ‘Linda Stewart” and brig “Thomas ¹⁰⁷ R. Stewart” belong of right to the said Bleioart, and are subject at all times to hie disposal, by the said Stewart, his heirs, executors, administrators or assigns, paying to us any advances that we make for him, more than the profits arising from the said vessels., according to this agreement) and securing us for liabilities incurred as aforesaid. N. Rogers, Nathan Rogers, Jr. Tost:—Henry Hartbin.

Charles Butler. These papers being admitted in evidence, the appellees proved that Nathan Rogers, Nathan Rogers, Jr., and Charles Butler, constituted the firm of Nathan Rogers & Go., from the 15th October 1852, (the date of the agreement,) to the 31st December 1853, and transacted all business connected with the management of the vessels, in said firm’s name. That Nathan itogers, Jr., retired from the firm on the 31st December 1853, Nathan Rogers, Sen., and Charles Butler remaining, and constituting the firm until 1st March 1856, when John P. Rogers became a partner, and Nathan Rogers, Sen., Charles Butler and John P. Rogers constituted the firm from 1st March 1856, to July 185?, when Butler retired, and Nathan Rogers, Sen., and ■John P. Rogers composed the firm from the 1st July 185?, to 2nd July 1858, when N. Rogers, Sen., died, John P. Rogers surviving. That Charles Butler and N. Rogers, Jr., are still living; that John P. Rogers proceeded, as surviving partner, to settle the business of Nathan Rogers & Co., under the name of Nathan Rogers & Co., and continued the same business in the same name, without having any partner.

The appellee further proved that the original firm of N. Rogers & Co. took charge of the brig and barque belonging to tlic defendant, by virtue of the agreement of the 15th and 18th October 1852, and that the brig (until she was lost, shortly after the 2?th December 1853) and tbe said ¹⁰⁸ barque were managed by the firm of N. Rogers & Go,,. composed of partners, as before stated, according to the dates above mentioned. The appellee then produced sundry accounts current between the said brig and barque and owners;, on the one side, and the firm of N. Rogers & Co. on the other, marked A, B, O, D, E, E, G, O, P and X, running from August 1st, 1853, to 1858, inclusive, which said accounts were produced at the trial, by the defendant, upon notice to produce them given at the bar, by the plaintiff's counsel.. The plaintiff proved that account B was delivered in March 1856 ; C in October 185.6 ; D in January 185V ; E in June 1858 ; E in May 1858-; G in June 1858 ; 0 in April 1858 ; P and X in the Fall of 1856 ; that the barque was sold on the 18th June 1858, by John P. Rogers, at public sale,, after due notice,, and purchased by plaintiff, for $8,000 ; that the last voyage of the barque commenced in the life of N., Rogers, Sen.„ and terminated after his death; and all the items in said account, subsequent to the death of N.. Rogers-, Sen., except in regard to the sale of the barque, were incidental and necessary to the winding Up of said voyage.

The plaintiff algo offered in evidence paper No.. 6,. being a duplicate of the original agreement, dated 2Vth January 185.3, signed by Nathan Rogers and Charles Butler, to shew that the defendant was aware, at the date of No. 6,. that N.. Rogers, Jr.., had retired from the firm. The plaintiff also offered all the correspondence between the firm of Nathan Rogers- & Go. and the defendant, from the 18th October 1852, to 12th August 1858. The plaintiff, by his counsel, having announced that he had closed his testimony, except as to rebutting evidence, the defendant, by his counsel, made the following motion to the Court: “The defendant, by his counsel, moves the Court to rule' out all testimony that has gone to the jury in reference to accounts current, or the items of account between Naths© ¹⁰⁹ ‘Rogovs, Nathan Rogers, Jr,, and Charles ‘Butler, trading under the uamo of N. Rogers & Co., and the defendants, and in reference to accounts current, or the items of account between Nathan Rogers, Charles Butler and John P. Rogers, trading under the name of N. Rogers & Co., for the reason that it was objected to by the defendant when offered, as inadmissible, and admitted by the Court, with the understanding’ that it was to be followed up by the plaintiff, and the plaintiff has closed his testimony, and failed to follow it up by testimony sufficient to make it admissible which motion was overruled by the Court, and the defendant excepted.

The defendant having offered certain testimony, and closed, submitted the following prayers, No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. T: Prayer No. 1.—The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the evidence, that Nathan Rogers and John P, Rogers, named in the declaration, on the 1st day of July i BS1?, formed a partnership for the purpose of conducting the shipping business, under the name and firm of N. Rogers & Co., and that the said Nathan Rogers, before the institution of tliis suit, departed this life, leaving the said John P. Rogers his surviving partner, that under the pleadings in this cause they cannot find a verdict for the plaintiff on account of any transactions between the defendant and any firm composed of other partners, unless they further believe, from the evidence, that subsequently to the formation of the said first mentioned firm, the defendant has acknowledged an indebtedness on account of said transactions, and expressly promised to pay the same to the said first mentioned firm, or to tlie plain tiff, as the surviving partner thereof. Prayer No. 2.—-The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the ¹¹⁰ evidence, that the defendant, on the 15th day of October 1852, was the owner of the brig “Thomas R. Stewart,” and the barque “Linda Stewart,” and that afterwards, on the same day, he placed the said vessels under the management and control of Nathan Rogers, Nathan Rogers, Jr., and Charles Butler, by virtue and according to the terms of the special •contract executed by them on that day, and offered in evidence by the plaintiff, and that the said Nathan Rogers, Nathan Rogers, Jr., and Charles Butier wore at that time partners, trading under the name and firm of N. Rogers & !Co., and with the knowledge and assent of the defendant, afterwards transacted all business connected with the management of said vessels, in the firm and name of N. Rogers & Co., down to the 31st day of December, 1853; and if they further believe, from the evidence, that on said last mentioned day, the said Nathan Rogers, Jr., retired from the •said firm, and the said Nathan Rogers and Charles Butler became partners, under the name of N. Rogers & Co., and took upon themselves the management of the said vessels, ■and continued to manage them in the said firm and name of N. Rogers & Co., down to the 1st day of March 1856, and on the said last mentioned day the said Nathan Rogers, Charles Butler and John P. Rogers, the plaintiff in this action, became partners, under the said firm and name of N. Rogers & Co., and took upon themselves the management of said vessels, and continued to manage them in the said firm and name of N. Rogers & Co., down to the 1st day of July 1851, and that on said last mentioned day the said Charles Butler retired from the said firm, and the said Nathan Rogers and John P. Rogers became partners, under the said firm and name of N. Rogers & Co., and took upon themselves the management of the said vessels, and continued to manage them in the said firm and name of N. Rogers & Co., down to the 2nd day of January 1858, and that on said last mentioned day the said Nathan Rogers departed this ¹¹¹ life, leaving the said Joint 1\ Kogers his surviving partner,that then they cannot find a verdict for the plaintiff oñ account of any transactions connected with the management of the said vessels, or either of them, which occurred prior to the date at which the said last mentioned firm was formed, unless they further believe, from the evidence, that tlio defendant knew who composed said firm, and with such knowledge, acknowledged an indebtedness on account of said transactions, and expressly promised to pay the samo to the said last mentioned firm, or to the plaintiff, as the-surviving partner thereof. Prayer No. 8.—That if they "believe, from the evidence, the facts mentioned in the preceding prayer, that they cannot find a verdict for the plaintiff, oil account of any transactions connected with the management of the said vessels^ or either of thorn, which occurred subsequently to the formation of the said last mentioned firm of Eathair Kogers and John P. Kogers, trading under the name of N. Kogers &s Co., unless they further believe, from the evidence, that the defendant l',new who the partners were who composed the said firm, and v-ith such, knowledge recognized the said firm as- Ms agents, for the management of the said vessels", or either of them. Prayer No. 4.—That if they believe, from the evidence, that the defendant placed the barque “Linda SteWart,” of which he was the owner, under tlie management and control of the firm of N. Kogers & Co., by virtue of tbe contract, dated on the 15th day of October 1852, and offered in evidence by the plaintiff, and that the said firm was at that time composed of Nathan Kogers, Nathan Kogers, Jr., a'nd Charles Butler, and that afterwards any changes were made in the partners of the said firm, either by the retire* ment of one or more of the original members thereof, or by the introduction of a new member therein, and that after such change in said, firm, any losses occurred to the said ¹¹² firm by reason of their putting in the said barque any part •of any cargo on the said barque’s account, that then the ■defendant is not responsible in this action for any such loss, unless they further believe, from the evidence, that at or before the time of putting in any such part of any cargo on the said barque’s account, the defendant knew who composed the firm so putting in the Same, and with such knowledge expressly agreed that he oí the said barque would be responsible to the firm so putting in for any loss that might ■result therefrom. , Prayer No. 5.—The defendant, by his'counscl, prays the 'Court to instruct the jury, that all the evidence offered by the plaintiff, as to any charge for interest, are matters Within their discretion, in the consideration of the claim of •the plaintiff, unless they should find, from the evidence, that there was an express agreement to pay interest, and that in no event -should they allow as interest any item of «charge for the same, whore more