Wilkinson v. Jett

In assumpsit by J. a sub-contractor, against W. a contractor for carrying the mail of U. States, for J.’s proportion of the compensation received from the post office department, a letter of the post master general is offered in evidence by defendant, and read without objection, to prove defaults committed by plaintiff in executing that part of the contract which was under-let to him; to repel which evidence, plaintiff offered a certificate of the post master general, shewing the defaults, and the times and places where they occurred; and defendant objects to the reading of this certificate: Held, the certificate was not competent evidence to any purpose. Plaintiff’s consent to the admission of incompetent evidence for defendant, is no reason for admitting other incompetent evidence for plaintiflj to which defendant objects. A contractor for carrying the mail agrees with a sub-contractor, that he shall perform one half the service, and be entitled to one half the compensation: Held, such agreement does not constitute a partnership between the parties.

Assumpsit by Jett against Wilkinson, in the circuit court of Brunswick. The declaration alleged, that the defendant Wilkinson, being the sole contractor with the post master general of the U. States, for carrying the mail for a short term, on two several and distinct mail routes, once a week, for 988 dollars, agreed with the plaintiff Jett, that if he would execute one half of the contract, by carrying the mail on each route, alternately, every other week, the defendant would pay over to him one half of the stipulated compensation of 988 dollars, as soon as the defendant should receive the same from the post office department; and that the defendant, having before that contract had expired, made another contract with the post master general, whereby the department agreed to allow him, for carrying the mail, once a week, on the same two routes, for a term of four years from the expix'ation of the first contract, the sum of 1450 dollars per annum, payable quartei'ly, agreed likewise with the plaintiff, that if he would execute one half of this contract, by carrying the mail on each route, altei'nately, every other week, the defendant would pay over to him one half the last mentioned stipulated compensation of 1450 dollars per annum, as he should receive the same; and the plaintiff averred, that he executed these agreements on his part; and that the defexxdant received from the department, 988 dollars under the first contract, and 1450 dollars per annum, quarterly, under the second contract; by reason whereof the defendant became indebted to the plaintiff, one moiety of the sums of money so by him received from the department ; and being so indebted, in consideration thex'eof, assumed to pay him the same &c. Plea, the general issue. At the trial, the defendant filed two bills of exceptions to opinions of the court. 1. The plaintiff having offered evidence to prove the agreements between him and the defendant, alleged in the declaration, the defexrdant moved the court to instruct the jury, that those agreements coxxstituted a partnership between the parties, and that no action at law could be maintained by the one partner against the other; but the court refused to give the instruction, and instructed the jury, on the contrary, that the agreements did not coxistitute a partnership between them; to which the defendant excepted. 2. The defendant on his part, in oz'der to prove negligence and misconduct of the plaintiff, in carrying the mail, under his agreements with the defendant, offered in evidence a letter from the post master genex'al, and other evidence to prove such negligence and misconduct; whereupon the plaintiff, in order to prove that the complaints of irregularities in carryixig the mail on the routes, which had reached the department, arose from the defendant’s own defaults in carrying the mail, at the times when he was bound to carry the same, offered in evidence a certificate of the post master general, under the seal of the department, setting forth those irregularities, and pointing out the times and places of their occurrence; to the admission of which certificate in evidence, the defendant objected; but the court permitted the certificate to be read to the jury, as evidence of the fact that complaints were made to the department, as stated in the certificate; and the defendant excepted. Verdict and judgment for the plaintiff for 276 dollars with interest &c. from which the defendant appealed to this court.