
    Edmund G. Holmes vs. R. & J. Caldwell & Co.
    Defendants, co-partners and factors, doing business in Charleston, employed plaintiff, and contracted to give Mm all their draying. Defendants after-wards dissolyed their partnership, and the new firm, employed another drayman: — Meld, that the contract terminated with the partnership, and that the new firm did not employ the plaintiff was no breach of it.
    BEFORE WARD LAW, J., AT CHARLESTON, SPRING TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “The defendants were Robert J. Caldwell, John Caldwell, and Winthrop B. Williams, late partners in trade as factors in Charleston. The action was assumpsit, brought to recover damages for breach of a contract, whereby the defendants, in consideration of plaintiff’s purchasing drays &c. from Felix Meetze, and assuming to pay a part of the indebtedness of Felix Meetze to them, agreed that plaintiff, as drayman, should have all the business of their house.
    “The whole evidence given in the case is subjoined, as the most satisfactory.report which can be made to meet the grounds of appeal:
    “ Felix Meetze. — I had lived in Columbia when Robert and John Caldwell lived there; I was unfortunate in business, and the result was my indebtedness to them about five thousand two hundred dollars. They came to Charleston, and carried on business as factors; afterwards established a branch of their house in New York. I think W. B. Williams was their partner.
    “ I came to Charleston in the fall of 1845. Before I left Columbia, I had made an engagement to do the draying for the house of R. & J. Caldwell, at twelve and a-half cents for a bale of cotton from tbe railroad, and fares within the city according to the city regulations. I did all the drayage of the house for seven or eight years. Defendants did a large business; the draying was some years thirty thousand bales of cotton a year; one year the defendants did not have confidence in cotton, and I did but little business; the average was twenty thousand a year. I sometimes was obliged to hire out some of the work to other draymen.
    “ I came to Charleston to pay my debt to the defendants— the proceeds (not all) went to extinguish my debt. It was finally settled 1st May, 1852.
    44 John Caldwell, before that day, expressed a wish to have the balance closed, as he was in bad health. I said that I could not close it, without selling out my stock, drays, &c.; that I could make a fair sale to Mr. Holmes, if they would let him have the business. He said that any body I sold to should have the business — that is, any responsible man.
    “About 15th of April, 1852, John Caldwell, Holmes, and myself, met by appointment at the Charleston Hotel. I told J. C. I had made arrangements to sell to Holmes, provided he would let Holmes have the business. J. C. replied, ‘that is perfectly satisfactory; Holmes shall have the business, if he buys your stock.’ I said to J. C. that Holmes was fearful that Wells (brother-in-law of J. C.) would interfere with the business, as two houses in Columbia that shipped to B. & J. Caldwell, and for whom I had formerly drayed, had given business to Wells. J. C. replied, So far as the two houses in Columbia are concerned, they are relatives of Wells, and of mine; I would not like to influence their business, it must be left in Wells’ hands. But Holmes shall have all the rest of the work, both cotton sold here, and cotton sent to New York.’
    “ Holmes was present all the time. I asked him if he was satisfied, he said ‘ yes,’ J. C. replied, 1 hope, gentlemen, we all understand each other.’
    441 asked Holmes if he was satisfied, or would rather have it in writing ? J. C. answered, ‘ I don’t like to put myself under obligation — I hope, gentlemen, we all understand each other.’ J. C. said he thought Holmes would have as much as he could do, at least for a year or two.
    “ Holmes and-1 had previously agreed on price, if he should be satisfied on conferring with J. C. He was not to buy unless he got Caldwell’s business. I told him he could have the property at the price agreed on, and our bargain was completed.
    “ Holmes and I had been previously draying together for two years, and I owed him a balance, about four thousand two hundred dollars. I sold to him four negro draymen, nine horses, and ten drays and -harness, and license. He gave me five thousand dollars for all, the balance I owed him was discounted, and he .assumed four or five hundred dollars of my indebtedness to Caldwell — all out of the five thousand dollars.
    “ I delivered drays, &c., to Iiolmes first of May; he built a large stable, which was necessary for the work. He continued draying for the defendants till the fall following, then Wells got the business. I do not know that the defendants, or either of them, took the business from Holmes — I never talked to either of them about it.
    “Holmes is industrious and capable, I never heard fault found with him. For a good while after losing this business he did little or nothing, then went into an office as a writer. He sold his stock; I bought back four drays and three .horses —I did’t give so much as I rated them at in sale to him. His horses were unemployed; six or eight of them for some time, say three months; one horse died worth one hundred and twenty-five dollars; his draymen were not idle long; I hired them myself; all after awhile. The draying business is generally done under contract; some kind of business may be easily got, but a contract is hard to get; horse-keep worth fifty cents a day; shoeing worth one dollar a month for each horse. Plaintiff’s time worth twelve hundred dollars a year. Stable cost much.
    
      . “ Holmes has been damaged by the loss of the contract; I cannot state the amount; he went to expense; fed the stock through the summer, when draying is an expense, and lost the business in the fall, soon as profits would have begun; I never, but one year, found draying sufficient to pay expense in the summer.
    “Holmes paid me six hundred dollars more than I could otherwise have got; his object was to get this business. I think, with the business of the house, a dray contractor*, when feed is not very dear, might clear two thousand dollars a year.
    “ The understanding of the contract was that Holmes was to take my shoes. It was a firm verbal contract. After Caldwell’s observation about obligation,’ I thought that I was going too far, and I said no more about writing.
    “ Cross-examined. — I afterwards saw Wells doing the business, and I did some for him ; I think he has now sold out his stock.
    “At the time of the sale, I think the firm consisted of the three defendants named. I don’t know how long John Caldwell remained in it afterwards, nor whether he is now a partner. He is now president of the railroad. I think that sometime, perhaps in Oct. ’52,1 saw an advertisement of dissolution of the firm. I believe it was stated that John Caldwell had retired; I can’t say when he retired, whether before or after Holmes quit draying for the house. There is now a new partnership — Robert Caldwell, W. B.< Williams, Blakeley, and Edwards.
    “ I saw Holmes at the railroad prepared to do the business, and Wells doing it; I don’t know who made the change, nor when it was made; Wells produced the receipts, which are the authority for draymen; Holmes seemed mortified; I can’t say who were the consignees in the receipts.
    “ One day J. Caldwell said to me that Holmes had sued, and he regretted it — said but little.
    
      “ Charles W. Simons. — I follow draying; knew Holmes in *52, he was draying for R. & J. Caldwell; his business ceased abruptly, latter part of September or in October; he was left with a large stock on hand, which had been kept at much expense in the summer for doing this business. A contract is indispensable, where one has a large stock. Two of his horses died; not one of them was worth less than one hundred dollars. Profits of such a business as his contract, properly conducted, should be considerable — estimated at two thousand three hundred dollars net a year. In summer there is usually a dead loss —can’t say how much.
    “ Cross-examined. — The present house is Caldwell, Blakeley & Co., does less business than the old house.
    
      “ The business was taken from Holmes in the time of R. & J. Caldwell, I think; I don’t know, however, when John Caldwell retired; all I know is, that I was surprised to see Wells doing the business which Holmes was to do.
    
      “ Nonsuit moved for — on grounds:
    “1. There was no contract — only a promise of patronage.
    “ 2. The contract, if any, was made by John Caldwell only —not by Robert Caldwell, or W. B. Williams.
    “ 3. There is no proof of breach during the existence of the firm of R. & J. Caldwell & Co.
    “ The motion was refused: as the evidence then stood, there seemed such doubt as entitled the plaintiff to the decision of the jury upon the facts involved in these grounds.
    “ In Defence. — John J. Hdwards. — I was clerk in the house of R. & J. Caldwell & Co., consisting of the three defendants; that house was dissolved 1st October, 1852, and a new house was formed, in which the partners were Robert Caldwell, W. B.' Williams, J. B. Blakeley, and myself. Of •the new house, Wells was retained as carrier about the 15th of October; Holmes continued up to that time, and a little while afterwards, say till his receipt in full, 26th October, 1852; that receipt is to Caldwell, Blakeley & Co., for three hundred and thirty dollars and seventy-four cents in full for drayage.
    “Wells did a little business before 15th October, for parties in Columbia, who sent their receipts to him; but no business that the house could control was taken from Holmes before 15th October. The new house changed because of the course of Columbia houses; we had no fault with Holmes, but were compelled to change; John Caldwell was not in the house when the change was made, he had nothing to do with it; I never heard either of the partners say that he caused it.
    “I instructed the jury, that a verdict for the plaintiff could be justified only by proof of a contract made and broken by the defendants; and that if the partnership of defendants was dissolved before the business was taken from the plaintiff, whatever might be the liability of John Caldwell, or of these defendants, in another form of action, there could be no recovery in this suit.
    “ The jury found fifteen hundred dollars for the plaintiff.”
    Defendants appealed and now moved for a nonsuit on the ground:
    That the plaintiff sued upon a supposed contract of defendants to employ him as their carrier, and that he proved neither the contract declared on, nor a breach of any contract.
    And failing in that, motion then for a new trial on the grounds:
    1. That the plaintiff relied on evidence of a contract of the defendants, then trading under the firm of R. & J. Caldwell & Co., to employ him as the carrier of the firm: and it was proved that he did all the carrying of the defendants from April, 1852, when the contract was supposed to be made, till 1st October, 1852, when the partnership was dissolved: and therefore there was a complete failure of proof to sustain the plaintiff’s action.
    
      2. That his Honor instructed the jury that the contract of which evidence was given, was a contract of R. & J. Caldwell & Co’s., and that the employment for which they were bound expired with the dissolution of the partnership ; but the jury differed from the Court in their construction of the law, and found that the contract extended beyond the partnership of the defendants.
    3. That the verdict is contrary to law and evidence.
    
      Petigrew, for appellants.
    
      Martin, contra.
   The opinion of the Court was delivered by

MuNR.0, J.

On the defendant’s first ground of appeal, we concur with the Circuit Judge, in overruling the motion for a nonsuit for the reasons stated in his report.

A different question is, however, presented by the grounds for a new trial; and it' is this, What was the nature and extent of the contract, between the plaintiff and the defendants, for the breach of which the present action has been brought ?

The contract was verbal, and in order that we discover its real character, in reference, both to its subject matter and duration, we must refer to the contract that existed between the witness Meetze and the defendants, from the year 1845, down to the year 1852. Meetze, in his testimony says, he made an arrangement to do the draying for the house of R. & J. Caldwell at twelve and a-half cents for a bale of cotton from the railroad, and fares within the city according to the city regulations. In detailing the conversation that took place between himself, the plaintiff, and J. C. Caldwell, one of the defendants, on the 15th of April, 1852, the time when the contract between the plaintiff and the defendants is alleged to have been made, he says, “ the understanding of the contract was, that -Holmes should take my shoes.” We are thus, by the aid of the testimony furnished by this .witness, enabled to reach a point in this transaction, where we are fairly permitted to assume one thing at least, which is, that whatever may have been the nature of the existing agreement between this witness and the defendants prior to the 15th of April, 1852, the only change that was effected in it on that day, was the subrogation of the plaintiff Holmes, by the mutual consent of the parties, to all the rights and liabilities of Meetze, under it; in all other respects it was to remain unaltered.

Let us now see what was the extent of Meetze’s rights under the agreement in question. Suppose, that shortly after Meetze’s removal to Charleston, the defendants had abandoned the pursuit in which they were then engaged, and had embarked in another which no longer required his services; or suppose one, or all of the co-partners had died, thereby causing a dissolution of the firm, or that the co-partnership had been dissolved by mutual consent, as it was in 1852; could Meetze in any of these events have maintained an action against the defendants, similar to the present? But again, as mutuality is an essential element in all contracts, suppose Meetze had abandoned the defendants’ service shortly after he had embarked in it; could the defendants have maintained an,action against him for a breach of his contract ? Unless an affirmative answer can be given to these several supposed cases, it is difficult to perceive how the plaintiff, who was merely subrogated to Meetze’s rights and liabilities, and who was content to stand in his shoes, can be entitled to occupy' a more favored position than could Meetze himself, if he were the plaintiff in the action.

But it was argued, that upon the faith of the defendants’ agreement, the plaintiff was induced to make a large investment, in horses and drays, to enable him to fulfil his contract, and that in consequence of its unexpected termination, he has been subjected to a heavy loss, for which the defendants should be held responsible. The obvious answer to the argument is this, that the plaintiff should have guarded against such a contingency before he adopted the contract: and if he found that he could not protect himself against it by an express stipulation in the agreement to that effect, he had only to decline its adoption, and there the matter, so far as he was concerned, •would have ended. But the same inconvenience must have happened to Meetze, had the dissolution of the firm taken place while he was a party to the contract: and if such an event had happened, in addition to the loss which he too must have sustained, by his investment in horses and drays, he might very well have swelled up the amount of his, demand against the defendants, by adding to it another item, the expense and inconvenience to which he had been subjected by his removal from Columbia to Charleston.

But whatever cause of complaint, the plaintiff may have against the defendants on this score, it is clear that it cannot avail him in the present action.

There being, then, no pretence whatever, that the defendants have been guilty of a breach of their contract with the plaintiff prior to the dissolution of their co-partnership in 1852, the period, too, when we think the contract between them finally terminated, we are of opinion that the verdict of the jury is not only unsustained by the evidence, but that it is directly contrary to law. The defendants’ motion for a nonsuit is., therefore, dismissed, but their motion for a new trial must be granted. And it is so ordered.

O’Neall, Wardlaw, Withers, WhitNer, and Glover, JJ., concurred.

Motion granted.  