Perkin 8 v. Hart, 24 U.S. (11 Wheat.) 237 (1826)

2. That the whole evidence, and the letters above cited, constitute a special agreement, defining the nature and extent of Perkins’s agency, and settling the subjects upon which he was to receive compensation, and the *9201 amount °f that compensation ; the legal operation of which *agree-* ment is, to preclude Perkins from claiming compensation for anything [p. 107] 1826] OF THE UNITED STATES. 23»

On the part of the plaintiff, it was argued : 1. That where a special parol contract, or a written contract, not under seal, has been entered into, the party may still recover on the common counts, in a general indebitatus assumpsit. 1 Chit. Pl. 333, and authorities there cited. In the case of the [p. 108] Bank of Columbia n. Patterson, 7 Cranch 303, it was held to be incontrovertibly settled, that indebitatus assumpsit will lie, to recover the stipulated price due on a special contract, not under seal, where the contract has been completely executed ; and that, in such case, it is not necessary to declare upon a special agreement. So, where a beneficial service has been rendered to the defendant, under the special agreement, but not in pursuance of its terms, the plaintiff may recover upon a quantum meruit. Bull. N. P. 139 ; 7 Johns. 132. Or, where the defendant is the occasion of its non-performance ; or, where the contract has been rescinded by the parties, or, put an end to by the defendant. 10 Johns. 37; 7T. R. 181; 4 Bos. & Pul. 357. Or, where the defendant, by his own act, defeats the performance. 12 Johns. 274; 5 Ibid. 87; 7 Ibid. 132 ; 2 Mass. 415 ; Pow. Cont. 417. And where * 1 the plaintiff *seeks to recover on a special contract, and the evidence J offered will support a common count, supposing no special agreement,

2. The agreement precluded the plaintiff from claiming compensation for [p. 109] anything done in execution of his agency, except according to the terms of that agreement. The case cited to show the contrary does not apply. Jacobson n. he Grange, 2 Johns. 199. Here, whatever services the plaintiff performed, before 1812, *in expectation of being compensated by the agency, must be considered as satisfied by the contract of agency then made. That contract must be regarded as embracing all services performed, or to be performed, by the plaintiff, for the defendant’s testator, in respect to the sale of lands. If the disputed items of account arose under the contract, they could only be recovered in a special assumpsit, grounded upon the contract. If they were claimed, independent of the contract, as not being within its terms, it was insisted, that the plaintiff could set up no claim to compensation for services in the agency, not embraced by the contract, which settled and defined the rights of the parties.

It is not easy to understand what the defendant’s counsel mean by the whole evidence. Upon examining the voluminous record sent up to this court, we find, that an active correspondence was carried on between Perkins and Hart, from the year 1803 to 1816, upon the subject of Hart’s *lands in Ohio, the payment of the accruing taxes on them, examin- . ing, surveying and preparing them for sale, and of other services to be performed by Perkins, in some way or other connected with those lands. If this be the evidence alluded to, there was no objection to submitting it to the court, to say whether the whole of this written evidence, or any part of [p. 110] it, created a special contract, investing Perkins with the agency of Hart’s land. But we find in this record evidence of a different character, such as accounts, receipts and depositions, in relation to Perkins’s agency respecting Hart’s lands in Ohio, If this was intended to constitute a part of the whole evidence, upon which the question of law was to arise, we should he of opinion, that it was fit only for the decision of the jury, and ought, not to have been submitted to the court.

The preparatory steps for bringing these lands, or certain portions of them, into the market, having been taken, the correspondence commenced, which is particularly referred to in the first and second reserved points. In Hart’s letter of the 14th of January 1812, he requests Perkins to give him *2481 his most favorable *terms of agency, to appoint sub-agents to do busiJ ness where he, Perkins, might judge necessary, with such compensation as he might agree upon with them. The letter then proceeds as follows : “ State the amount of commissions you shall expect me to pay on amount of sales that shall be collected and remitted, but no commissions to be paid by me, till the collections are made. Provided sales are made by me, in exchange for lands, and if I should draw on you for the amount, to be paid in lands, at a price agreed on, or otherwise, if necessary, to be left with you to 'be ascertained, in such case, what should you expect to charge on sales of that nature ? Please be particular in stating your terms of agency, and make them as favorable as possible.” In answer to this letter, Perkins writes, on the 10th of February 1812, as follows : “My commission on sales made by me, the money collected and remitted, is eight per cent. When [p. 111] contracts are made (as is sometimes the case), purchasers make a payment, and then give up the land, so as to be left without incumbrance, to be sold again, 50 per cent, on such receipt. On these two items, the commission cash, as it has been cash received. In case the agency should be closed, and a settlement made, and contracts remain on hand unsettled, then, in all those contracts that should be carried into effect, five per cent, commission, received in contracts, with a conveyance of the lands covered by the contract or contracts received. On sales made in exchange *for lands, rsjs &c., three per cent, commission, to be received either in contracts - here, or lands here, at retail price. Always, as far as practicable, receive commissions in that which shall be similar to that in which it is charged.” The letter from Hart to Perkins, dated the 9th of March, in the same year, acknowledges the receipt of the above letter, and then adds, “ Your observations in regard to the mode of selling new lands, are, doubtless, sanctioned by experience, and I am happy to commit the agency of my property to your experience and good judgment, from whence I expect to derive peculiar advantage.”

The second proposition is, “ that this special agreement was open and subsisting at the time the cause of action is supposed to have arisen.” Now, this proposition involves a mixed question of law and fact. If the contract was open, and the action was founded on that contract, then the legal consequence insisted upon, “ that Perkins cannot recover in this action,” undeniably follows. But whether, in point of fact, it was open, when the cause of action is claimed to have arisen, that is, in the lifetime of W. Hart, must depend upon the evidence in the cause, of which the jury were alone competent to judge. If the agreement was wholly performed by the plaintiff, during the lifetime of Hart; if its further execution was put an end to, before its completion, by the act of Hart, or by the agreement of both parties, then the plaintiff was not precluded from recovering in this action. Nay, further, if the contract was fully performed in relation to any one subject covered by it; as, for example, by the sale, collection and remittance of the purchase-money for any one township or parcel of land, the plaintiff might well maintain an action of indebitatus assumpsit for his stipulated compensation, in cash, on that transaction, and was not bound to wait until all the lands to which his agency extended were disposed of. Where the [p. 112] *251 SUPREME COURT Feb’y

But after all this is admitted, the inference of law insisted upon by the defendant, that Perkins is precluded by the special agreement from claiming compensation for anything done in the execution of his angency, except according to the terms of that agreement, does not follow. The agreement is clearly prospective, and is confined to the single subject of commissions on [p. 113] the sale of lands. This is apparent from Hart’s letter of the 14th of January 1812, which he prefaces by stating, that he had concluded to offer certain portions of his lands for sale, at that time, and his other lands, when they should be partitioned. He desires Perkins, as his agent, to make the necessary previous arrangements, and to proceed in the sale of the portions before mentioned, and of No. 2, in the 13th range, as soon as the partition should be completed, and then be proceeds to inquire his terms of agency, as before mentioned. But when we look into the whole evidence, to which we are referred by the point reserved, it is found, that the agency of Perkins commenced at early as the year 1803, and extended to a variety of duties, unconnected with that of selling of land ; such as exploring the lands of his principal, having them surveyed, their quality and value ascertained, investigating titles, attending to a law-suits, paying taxes, and making other advances.

The third and last point reserved is thus expressed : “ That the plaintiff cannot recover for the two items in the bill of particulars claimed and charged to have arisen as matters of account between the parties, in 1814 and 1815, because the plaintiff, on the 1st of February 1815, and on the 19th of March 1816, exhibited and stated his general account against William [p. 114] Hart, upon each of which a balance was due from, and paid by, the said William, as a settlement upon an account stated, which precludes the plaintiff from recovering in this action, for said two items claimed to have been due before the said accounts were rendered.”