Alpaugh v. Wood

The opinion of the court was delivered by Dixon, J.

The scope accorded by the trial judge to the contract in this case was too limited. The mention, in the document, of an existing pottery, was designed to indicate the place where the business provided for was to be conducted, and, in a general way, the business itself, as being that of a pottery, but there is lacking any intimation that the business was to be confined to such products as had previously been manufactured. There are several reasons for thinking that the contract has a wider sweep.

First. It is reasonable to assume that, in making an arrangement which was to last over three years, for the charge and superintendence of a manufacturing enterprise, the parties contemplated the introduction of such improvements as were then or might thereafter be in common use in similar estab *642 lishments. The opposite assumption would be unreasonable, for it implies that the parties were blind to the signs of progress everywhere apparent in manufacture, or were indifferent to the success of their undertaking.

Secondly. Prior to the making of this agreement, there was in the pottery (as we understand the evidence) no decorating department, the sole products, white granite and C. C. ware, being undecorated. But the contract expressly provides for such a department, to be under the charge of the defendants. The parties must then have intended to produce decorated ware, and so to advance beyond the previous manufacture.

Lastly. “ The conduct of the parties has gone far to settle the true interpretation of the contract,” using the words of Chancellor Green in Burlew v. Hillman, 1 C. E. Gr.27. The contract related to the future management of the business of the plaintiffs’ pottery. Extrinsic evidence disclosed that the previous business of that pottery had been more limited than the business to which the pottery was reasonably adapted, and thus a question is raised whether the parties bargained about a business of the narrower or of the wider range. This question, suggested by extrinsic evidence, may be answered by evidence of .the same class. 2 Pars. Cont. *560; 2 Phil. Ev. *746; Den. v. Cubberly, 7 Halst. 313; Jackson v. Perrine, 6 Vroom 137 . On this point the acts of the parties during the performance <of the contract are persuasive testimony. It appears that throughout the period of their employment the defendants, with the assent of the plaintiffs, entered upon the manufacture of several kinds of pottery different from the white granite and C. C. ware, without any intimation from either side that such manufacture was not included in the contract, or that, by reason of it, the defendants, who had bound themselves to give their whole time, labor and skill to the contract business, were either failing to earn the compensation provided in the agreement or were earning any other compensation than that. It also appears that, after the termination of their employment, the defendants filed a bill in equity against the plaintiffs, claiming an account of all the business done in 'the pottery *643 during their term of service, under that clause of the contract entitling them to ten per cent, of the net profits of the business embraced in the agreement, and that this claim was not resisted, except on the ground that the defendants had failed to manage the business with d.ue skill and care. On this bill the complainants obtained a decree for the account claimed. More unequivocal indications of the understanding, of the parties, as to the subject matter of their contract, could scarcely be supposed. We are satisfied that the contract embraced the manufacture of any species of pottery in the production of which the parties might consent to engage.

Having thus ascertained the business which the defendants •agreed to manage and superintend, we are next to consider what was their obligation with regard to the management, and whether there was evidence tending to prove a failure to meet such obligation.

The defendants bound themselves to possess and to exercise, with reasonable care, that degree of knowledge and skill, in the manufacture of pottery, which was common to persons •occupying such positions as the one they undertook to fill. Alpaugh v. Wood, 18 Stew. Eq. 156.

This probably would not bind them to the-successful manufacture of every species of pottery, but it certainly would not ■be unreasonable or illegal for a jury to conclude that it bound them sufficiently to test each contemplated manufacture by experiment on a small scale before incurring the cost of turning out'large quantities of the product for mercantile purposes.

The evidence adduced below by the plaintiffs was to the •effect that, in many instances, after experiments which the defendants declared to be satisfactory, the merchandise manufactured by the defendants was so defective, in the biscuit, the ■glazing and the firing, as to be almost worthless. This evidence would warrant an inference that the experiments were inadequate, or else that the same skill and care employed in the experiments were not given to the larger production; and ■either conclusion might lead the jury to a verdict for the plaintiffs.

*644 We therefore think that the non-suit upon the ground-assigned at the trial was wrong.

It is urged by the defendants that the obligations imposed upon them by this contract are not joint but several only.

Wherever an obligation is undertaken by two or more persons, it is the general presumption of the law that it is a joint obligation. Words of express joinder are not necessary for this purpose; but, on the other hand, there should be words of severance, in order to create a several responsibility. 1 Pars. Cont. *11; Chit. Cont. 128. This presumption is cotroborated when the promisors have undertaken to accomplish together a single result, for in such cases the promisee evidently relies upon a joint performance. The inference of -a> joint obligation is not defeated by the fact that it appears, either in the terms of the contract or from the circumstances-of the transaction, that each promisor is to contribute separately to the entire result for which they bargain. Byers v. Doby, 1 H. Bl. 236; Muzzy v. Whitney, 10 Johns. 22 6; Field v. Runk, 2 Zab. 525. ISlor is the nature of the obligation, with respect to its being joint or several, to be determined by considering whether the remedies of the same parties under the contract would be joint or several; for their remedies depend largely, if not wholly, on the nature of their interest,, from which, of course, their liability is entirely distinct. 1 Pars. Cont. *13.

Under these principles it is clear that the obligation of the-defendants now in suit is joint. They are joined as the parties of the second part in the agreement; together they covenant to enter the employment of the party of the first part, to take-the entire charge of the manufacturing department of the pottery, and- to give their whole time, labor and skill towards-the proper management of the business. This covenant does not assign to each of the defendants his several duties, nor require from either the exercise of skill and diligence in any special department of the work, but binds .both to the due-management of the entire manufacturing business, leaving-them to divide the charge between themselves, according to- *645 their own discretion, and holding them responsible, not each for what he may arrange with his partner severally to assume, but both for the result to be jointly accomplished—the skillful and careful management of the pottery. Even the last clause of the contract, which secures to the plaintiffs exclusively the knowledge and services of the defendant Barlow in modeling, is not cast in the form of a separate covenant by Barlow, but is expressed only as a part of the understanding agreed upon by the parties, viz., by the plaintiffs on .the one part aud the defendants on the other. But even if this clause should be construed as Barlow’s separate covenant, and as not involving Wood in responsibility for modeling, .that would not affect the present question, for the plaintiffs’ case does not rest upon defective modeling, or at least not upon that alone.

The judgment of non-suit should be reversed, aud the record remitted for a venire de novo.

For affirmance—None.

For reversal—The Chancellor, Depue, Dixon, Knapp, Magüe, Reed, Scudder, Van Syokel, Brown, Clement, Smith, Whitaker. 12.