726
FEDEBAL REPORTER.
chargelt willi the offense of' desertion, we are not authorized to coilsider the question at all. . The prisoner must be remanded. to the of the having him in charge, to be held for trIal for the offense charged, III the due course of such proceedings, and the writ discharged; and it is so ordered
GOLDSMITH
v.
l:3ACHS
and others. 1 and others. and others.
TSAM WHITE V. SACHS
LEVY WHITE V. SACHS
;Oircuit Oourt, D. Oalifornia. May 15, 1882.)
1.
CONTRACT FOR FUTURE PARTNERSHIP.
Where 8everal parties agree to enter into partnership on a future day, but a part refuse to enter upon the business in pursuance of the terms agreed upon, and the partnership is never launched, whereby the others are injured, thll only remedy is an action at law for the breach. SAME-PARTIES.
2.
'Vhere seven parties agree to enter into a partnership at a future day, the language being, "they have agreed to hecome partners," and four out of the seven, afterwards, jointly refuse to enter into the partnership, and thereby commit a breach, by reason of which each of the others sustains several, but no joint, damages, each party so sustaining several damages may maintain an action against the parties jointly committing the breach, without joining, either as plaintiffs or defendants, the others who have committed no breach. Parties jointly committing a breach of a contract may all be joined as defendants.
3. 4.
BREACH OF CONTRACT.
VOID FOR UNCERTAINTY.
Where the contract provides that" the business of the partnership shall be buying, selling, and dealing in dry goods and furnishing goods, and such other merchandise as may be convenient and profitable to all parties concerned," the description of the business is not so vague and indefinite as to render the contract void for uncertainty. D.nfAGEs.
5. 6.
'Vhere the complaint presents a case for some damages, even if only nominal, it is not necessary, on demurrer, to determine the rule of damages. JOINT AND SEVERAL CONTRACTS.
Hule in regard to parties stated, where contracts are not in express terms either joint or several; or when a contract will be regarded as joint, and when as several.
Demurrer to Complaint. The facts sufficiently appear in the opinion of the court. McAllister d: Bergin, for plaintiff. Wilson cf; Wilson, for defendants. SAWYER, J. This is an action on a contract to enter into a partnersllip, which the defendants are allel:!ed to ha.ve refused to carry lFrom 8th Sawyer.
GOLDSlllI1U V. SACUS.
out. They contend that the partnership never went into effect, and, consequently, that there are no partnership affllirs to settle up. It is also correctly contended that only an action at law will lie for the breach. But this is an action at law by one of the parties against several of the others, who are alleged to have refused to go on with the partnership. The parties to the contract are Isam White, E. L. Heller, S. W. Heller, Martin Sachs, Sanford Sachs, Max Goldsmith, and Levi White. This action is by Goldsmith against the two Sachs and the two Hellers. Neither Isam White nor Levi White is Joined as or defendant. He alleges special several damages resulting to him alono from the broach. It is claimed by the defendants that this action cannot be maintained if the parties L. and 1. White are not joined. The only terms of the contract indicating its character, whether joipt or several, are, "they have agreed to become partners." That is the language of the contract. The contract, therefore, is not in express terms. oither joint or several. In tho case of Capen v. Barrows, 1 Gray, 376, the court citing Broom on Parties, 8 and 10, these rules are laid down: ·Wbere the covenant is, in its terms, several, but the intcTest of the covenantees is joint. they must join in suing upon the covenant; (2) wbere the covenant is. in its terms, expressly and positively joint, .tbe covenantees must join in an ilction upon the covenant, altbough as lJetween themselves their interest is several; (3) where the language of the covenant is capable of being so construed, it sball lJe taken to lJe joint or secerul according to the r:'>TEI:EST of the covcnantees.
The last is the category in which this contract falls. The terms, are expressly neither joint nOI: several; so the parties, according to that rule, may consider it as either joint or several, according to their interest and the nature of the cause of action. Certainly each party has an interest in having each and all of the other parties go on with the partnership and carry out the agreement. Each has a soveral interest in carrying out that partnership arrangement. He cannot sue them all, at law, because some of them have committed no breach. There is no cause of action against them. He cannot join them all as plaintiffs, because all are not injured, or have not all sustained the same injury. The injury complained of is not joint. It affects no one bnt the plaintiff. If a recovery is had for the damages alleged, the partnership assets are neither increased nor diminished. The plaintiff does not contribute to pay his own judgment, nor do any of the others share in the judgment. He could not join as party plaintiff those who are guilty of the breach, and liable for the damages, because the damages are several and his own, and not theirs. The parties sued cannot be both plaintiffs and defendants; and unless he can sue those alone who committed the breach and are liable, there is no remedy whatever. There would be a wrong-an injury-without a
728
FEDERAL REPORTER.
remedy. lilS several interest is injured by the action, alone, of those sued, for which he alleges special damages. He must be entitled to recover against somebody, and it must be against those who are guilty of the breach, or nobody. Nobody else can share in that recovery, or be compelled to contribute to the payment of the judgment, if he does recover damages. Although not so in express terms, I do not perceive why the contract might not be regarded as a contract both joint and several; a contract by each party with all the others to enter into a partnership with all the others; also, a. contract between each one, with each or more of the others, that he will go into partnership with all the others. That would seem to be the effect. 'l'he interests of the parties seem to require it to be so regarded. It is a contract sui generis. None of the cases cited are exactly in point, but that seems to be the rule as stated in Gray, and in Broom on Parties, 8, 10. In the case in Gray the language is precisely in effect the same as in this case: "Have agreed to become partners," in one, and "parties agreed to form a partnership," in the other. The interest is held to be joint in that particular action. The rule of the cases appears to be this: Where the interest in the cause of action is several, the parties should sue separately, if the covenant is not "exLJressly and positively" in terms joint. In 1 Saunders, p. 154, in a note to Eccleston v. Clipsham, cited by the defendant, it is said: "So, though a man covenant with ttCo or more jointly, yet, if the
and calise of action of the covenantees ue several and not joint. the covenant shall ue taken to be seve1'al, and each of the covenantees may bring an action for his pa1'ticula1' damage, notwithstanding the words of the covenant are joint."
The case coming nearest to this that I have seen is Vance v. Blair, 18 Ohio, 532. The parties entered into an agreement with reference to a particular transaction, which would make them partners in that transaction. Two of them finally sold out to a third, before commencing operations, and the third violated the agreement, and the two remaining parties sued that third party for the violation of the agreement. On demurrer for want of parties, the court says: "Another ohjection is that Cary amI Hyatt are not parties to the action, Cary and Hyatt, although parties to the contract, we think could not be parties to this suit. Before the work commenced, as can be fairlY inferred from the dedaratiou, they sold ont, each his one-sixteenth of the rfght to the COlltract, to Blair. They have no cause of complaint against either party; nor can either party complain of them. They have not broken the contract. nor has either of the parties oroken it with them. They cannot maintain a suit 19ainst llIair. uecause Blair admitted to them their rights under the contract, amI paid them what they were willing to take for those rights. The plaintiff,; caunot luaintain a suit against them, they duly claimed and receind what they h,lll a right to under the same that the plaintitIs were claiming ill this suit."
GOLDSMITH V. SACHS.
729
And therefore the court overruled the demurrer upon that ground, but sustained it upon another technical ground, having no relation to this qnestion. Levy and lsam White were willing to go on, and are not liable. Why should the plaintiff sue them? They have no interest in his recovery; why should they join? The only parties to the breach and the damages alleged are the plaintiff and the defendants. If plaintiff cannot sue in that way, he cannot sue at all. He has no right of action in equity, because the partnership was never launched. The agreement is to enter into partnership at a future day, which the defendants refuse to do. Certainly, the defendants cannot be both plaintiffs and defendants in an action at law. I think that point not tenable. The next point is that the defendants cannot be joined. It is alleged that they jointly conspired together to commit the breach; that they jointly conspired and jointly acted. Then they are jointly liable. I do not see why they cannot be joined. It may be true that if one of them had refused to carry out tht contract alone, the other defendants would be entitled, on that ground, to refuse to go on with the others without him. But that is not set up. That is not the case made by the complaint. It may be a proper matter for answer. It is contended that plaintiff cannot recover, becl1llse if any one of the parties to the contract refused to carry it out, the rest would be entitled to repudiate the contract until he consents, because they only agreed to go into partnership with the others alone. That is not the aspect presented in this case. It is not alleged here that one refuses to go on, and that the co-defendants refuse to go on because of that refusal. The allegation is that the defendants "jointly conspired together and jointly committed the breach complained of." That is the allegation. I think that ground is not tenable. The further point is made that the contract is void for uncertainty. "The business of the partnership shall be buying, selling, and dealing in dry goods and furnishing goods, and such other wares and merchandise as may be convenient and profitable to all parties concerned." Certainly the dry goods business and furnishing goods business be sufficiently well known to merchants to make it reasonably certain what the- subject-matter is. Then, as to "such other wares and merchandise as may be convenient and profitable." I see no objection to it, if the parties so choose to stipulate. It is an agreement. First, they shall deal in dry goods and the general furnishing goods business. Those terms have a well-known meaning among mercantile men. Then the further agreement is, in effect, that they shall deal in suc_h other wares and merchandise as they may agree upon to be convenient and profitable. If they choose to put it in that form, I do not see that they have not the right to do so. They have, substantially, provided a mode and means of making it specific, by leaving it for their future decision as the occasion may
730
F-ED:ERA L ""REPORTEU.
call for when it arises. I tliink the demurrer, therefore, is not tenable on that p o i n t . ) The next point is that eithet party could dissolve the contract, con-: sequently no action lies. They have specified the term of five years: from the 11rst uf January following for the term of the pfll'tnership; and it IS provided that in case anyone should go out of the firm_ there shall be no allowance for the good-will. After executing the: contract these parties allege that they made certain other arrange-, ments, which defendants knew, at the time of making the contract, the plaintiff must make in order to go into that partnership; by, which arrangement plaintiff necessarily lost money. And then, after having sustained these losses, after taking upon himself these inconveniences, with the knowledge of defendantB, these defendants refused to carry out the arrangements for the partnership, whereby the plaintiff sustained damages. It seems to me there is a cause of action stated here. What the rule of damage may be would be another question. What the amount of it, another question. They" have agreed to enter into a partnership for the purpose of carrying on the prescribed business, which the clefemlants have violated. Certainly there must be some grounds for damage, at all events, even if nothing more than nominal. The other point is that no such damages as alleged can be recovereel. I have passed upon that point so far as the claim is concerned when I refused to strike out. I think there is a basis for damages of some sort alleged; certainly for nomiual damages. Demurrer overruled, with leave to answer on the usual terms. Isam White against the same parties is an action bronght hy another one of the parties to the contract against the same parties for the several individual damage sustained Ly him. Of course the same principle applies to that. Levy White against the same defendants is the third case of the same kind, and the Demurrer in each will be overruled on the usual terms. There is no doubt whatever that an action at la,,' may he maintained In' a party to an executory contract to form a future copartnership, to recover (himages for a wrongfUl refusal by the other party to execute such It is also well i'H!ttled that the wrongful refusal by :l party to a contract of copartnership to pennit the firm to commence business, or, as it is termed in the !ll:incipal case, .. to launch" the partnership business, is gronnd for an action at law by the injured partner to recover damages of the partner whose ful has the. for which the copartnership was formed. 2 1 Hill v. Palmer,· QG-'{-is. U3; S. C. 1-1 X. ReI'. 20.
\r. 2 Starkie, 107;
Leckie, 13 East, 7; Gale,\·. Leckie, v. 4 59;
STATES
BRITTON.
731
The test seems to be that if the damages resulting from the breach of a covenant or stipulation: in the partnership agreeinent by One partner belong exclusively to the other partner, and can be assessed without taking an account of the partnership covenant or assumpsit may be maintained by the injured partner against the other for such damages. 1 In Hill v. Palmer,2 the complaint alleged that it was agreed between the plaintiffs and the defendant that they" should enter into a copartnership for the purpose of cutting, logging, aud running" timber of one C.; that, by the terms of the agreement, the defendant was to make a contract with C. for said work, in his own name, for the benefit of the plaintiffs and himself, and that the work was to be done jointly, and the expenses and gains or losses to be shared by the plaintiffs and the defendant; that the plaintiffs gave the defendant valuable information concerning the work, which had been obtained by them at great expense; that the defendant entered into the contract with C.; that in so doing he relied upon the information given by the plaintiffs; that he counseled with them as to the various conditions of the contract, and that before its flnal execution he informed them of its contents, and was by them authorized to execute it; that the contract was executed by the defendant for the benefit and in behalf of the plaintiffs as well as himself, and in pursuance of the agreement hetween them; that the plaintiffs were ready and offered to perform the contract with C., and comply with the conditions of the partnership agreement as agreed to be entered into; that the defendant refused to comply with the conditions of his agreement with the plaintiffs" by refusing to enter into or carry out said partnership, and by refusing to permit" the plaintiffs to take any part in the performance of the contract with C.; that he performed such contract alone, and was paid therefor by C.; that the profits which would have been made by the plaintiffs and the defendant in said work would have been $11,000; and that the plaintiffs had been damaged by reason thereof in the sum of $5,500; and on demurrer the court held tlJat it statml facts constituting a cause of action at law. st. Paul, Minn., September 25, 1883. IIOWAllD. Glover v. Tuck, 24 Wend, 153; Bagley v. Smith. 10 N. Y. 489; Terrill v. Richards, 1 J\'ott & McC. 20; Ellison v. Chapman. 7 Black!, 224; Williams v, Henshaw. 11 Pick. 9; Addams v. Tutten. 39 Pa. St. 447; Vance v. Blair. 18 Oblo. 532; 1 Story, Eq, Jur, § ii65; Collyer. Partn. § 256; 2 Lindley, Partn. (4th Ed.) 1025, and cases cited in notes. 1 Collamer v. Foster. 26 Vt. 754; Hill v. Palmer, supra; Venning v. Leekie, 13 East, 7; Elgie v, Webster. 5 Mees. & W. 518; Foster y. Allanson. 2 Tern1 R. 479; Townsend v. Goewey, 19 Wend, 424; Bumpass v. Webb. 1 Stewart. (Ala.) 19; Williams v. ilenshaw. supra. · Supra.
UNITED STATES V.
(Commissioner's Court, S. D. Oldo. MAILr."G OnscE"E LETTER-HEV.
1883.
The mailin'" in a sealed envelope of a letter which, in whole or in part, contains matter wonld have a depraving, a demoraEzing, or a corrupting influence on the person to whose hands it might come. is an offense within the meaning of section 3893 of the Hevised Statutes.
ST, § 3893.
On Motion for Discharge of Defendant. Henry Hooper and Thea. Kemper, for the Government. lVm.,M. Ramsey and John F. Follett, for defendant.
