Babbitt v. Riddell's Executors

Supreme Court of Pennsylvania

Babbitt v. Riddell's Executors

1 Grant 161, 1854 Pa. LEXIS 225

DecidedOctober 30, 1854

StatusPublished

This text of 1 Grant 161 (Babbitt v. Riddell's Executors) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Babbitt v. Riddell's Executors, 1 Grant 161, 1854 Pa. LEXIS 225 (Pa. 1854).

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Opinion

The opinion of the court was delivered

by Lowrie, J.

— Two counsel having been employed for a certain sum to prosecute with success a suit at law, one of them, after part of the services had been performed, died, and after that the engagement was completed by the survivor, and he received the compensation: how shall it be divided as between the survivor and the representatives of the deceased ? It is not necessary to consider the question, whether or not the employer might have treated the contract as at an end, when one of the counsel died, for it was not so treated. If two are employed to perform a certain service, and do not perform it fully, the employer may refuse to pay them. But if they, or one of them does it, the employer can raise no objection in relation to the part which each one of them performed. His right to refuse payment depended upon their relation to him. To each other they stand in a different relation, and out of it arises the implied promise that each shall perform his share of the service, and have his share of the reward, and the shares are presumed to be equal until the contrary appears. If one of them violates this contract, by refusing [164]*164to perform his part, he has ro equity to rely upon for á share of the compensation; but it is not so if his failure to perform is occasioned by death. The survivor having completed the service and received the compensation, must pay to the representatives of the deceased, so much of it as is equivalent to his portion of the work done, and such was the instruction of the court to the jury. This of course excludes the offer of evidence, by which another standard of distribution was intended to be presented.

It is further complained, that the calculation submitted to the jury by the plaintiff was based in part upon an erroneous arithmetical principle; but we do not see how the defendant could be injured by this, seeing that the case was submitted under proper instructions.

Judgment affirmed.

Lewis, J., dissents on the last point.

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The opinion of the court was delivered

by Lowrie, J.

— Two counsel having been employed for a certain sum to prosecute with success a suit at law, one of them, after part of the services had been performed, died, and after that the engagement was completed by the survivor, and he received the compensation: how shall it be divided as between the survivor and the representatives of the deceased ? It is not necessary to consider the question, whether or not the employer might have treated the contract as at an end, when one of the counsel died, for it was not so treated. If two are employed to perform a certain service, and do not perform it fully, the employer may refuse to pay them. But if they, or one of them does it, the employer can raise no objection in relation to the part which each one of them performed. His right to refuse payment depended upon their relation to him. To each other they stand in a different relation, and out of it arises the implied promise that each shall perform his share of the service, and have his share of the reward, and the shares are presumed to be equal until the contrary appears. If one of them violates this contract, by refusing [164]*164to perform his part, he has ro equity to rely upon for á share of the compensation; but it is not so if his failure to perform is occasioned by death. The survivor having completed the service and received the compensation, must pay to the representatives of the deceased, so much of it as is equivalent to his portion of the work done, and such was the instruction of the court to the jury. This of course excludes the offer of evidence, by which another standard of distribution was intended to be presented.

It is further complained, that the calculation submitted to the jury by the plaintiff was based in part upon an erroneous arithmetical principle; but we do not see how the defendant could be injured by this, seeing that the case was submitted under proper instructions.

Judgment affirmed.

Lewis, J., dissents on the last point.

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Bluebook (online)

1 Grant 161, 1854 Pa. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babbitt-v-riddells-executors-pa-1854.