Oliver v. Vernon

18 F. Cas. 673, 4 Mason C.C. 275

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1826
• Status: Published

Opinion

STORY, Circuit Justice.

The master’s report contains so full an exposition of the facts and circumstances of this case, that it is unnecessary to do more than refer to it for the points in controversy. I shall confine my observations to the objections and arguments brought forward by the parties.

1. In respect to Mr. Morton’s deposition, if anything in my view of the case, turned conclusively upon that, I should rather incline to think his testimony admissible. The release in the case was intended to release every claim of the witness against Mr. Brown’s estate, so far as this controversy is concerned. It is but by a formal slip that Mr. Vernon’s name is not introduced as one of the releasees; but there is an express release, in terms, of all claims upon Mr. Brown’s estate as to this matter, reserving all other rights to the witness. I rather incline to think, that at least in a court of equity, this would be held a sufficient release to bar the witness; and at all events if it became material, I should recommit the report, and direct a more formal release to be given, in order to qualify the witness. My own view of the case is not materially affected by the fact, whether the testimony of Mr. Morton be in or out

2. The allowance to Mr. Brown of $2,000, as a compensation for his services as treasurer, is, in my judgment, conclusive, as to all claims for services up to the time when that compensation was made, by the acceptance of the report of the committee appointed to ascertain existing claims. I carry it forward to November, 1815, because I think it fair to infer, that it was the intention and object of all parties to liquidate all demands up to the period of the acceptance of the report. The ascertainment of the full demand was important for a final settlement at Washington; and this was indeed its avowed object I think this allowance conclusive for the antecedent services, because it must be deemed to have been acquiesced in by Mr. Brown, as a final adjustment, and because, by the regulations of the company, the treasurer's compensation was to be in the discretion of the directors. If Mr. Brown was dissatisfied with the allowance, he ought to have appealed to the directors. He did not; and his executor cannot disturb the full effect of his acts. Indeed, from the whole evidence in the case, I am strongly inclined to think, that whatever was Mr. Brown’s legal right of compensation, even this allowance was not sought for or claimed by him.

3. As to subsequent services, in point of law and equity, Mr. Brown was entitled to compensation, if he chose to claim it. He performed valuable services, and especially in the receipt of the stock, in large and small sums, and the payment of the dividends of it, among ninety-five stockholders. In common reason no_ man ought to be expected to do such-a duty without some con-pensation, for it must always be attended with considerable labour, and some hazard. In point of fact Mr. Brown has, by an error in payment, overpaid to the amount of more than $1,600 in stock, and probably this error is, from other circumstances, now irreparable. The presumption of law, then, being, that for the performance of valuable services a compensation is due, what is there in this case to rebut that presumption? It is said, that it was originally understood and agreed by all parties, that Mr. Brown, as treasurer, was to receive no compensation. Now there is no such original agreement proved in the case. On the contrary, it is shown by the articles, that it was originally in contemplation of the company, that the treasurer should receive compensation, for an authority is given to the directors to make it. And the company, in the final allowance to Mr. Brown, must be deemed to have admitted his equitable claim to that sum, at least, for the services rendered. The testimony of the witnesses establishes, to my satisfaction, that Mr. Brown was strongly inclined against making any claim for his services; but he also thought, that every other director ought also to give his services gratuitously. They, however, did not; and there is no reason why his wishes or intentions should, under such circumstances, bar his own rights, and let in those of all others. Indeed, it is obvious from the tenor of the conversations related by the witnesses, that they applied to services rendered antecedently to November, 1835.

But there is a material difference between cases where a man, from generosity of spirit and liberal feelings, waives any compensation for services he has performed as a matter of bounty, and cases where he originally stipulates to perform those services gratuitously. In point of law, Mr. Brown, on accepting the treasurership annually, must be deemed to nave undertaken the duties under the express stipulation of the articles, that the treasurer should be entitled to such compensation as the directors should think just. If he chose not to insist on any compensation, he was certainly at liberty so to do. But if he had insisted on compensation, it is plain, that the directors were bound to allow him, for his services, a just and reasonable sum. The legal right of Mr. Brown, under the articles, is one thing; his private intention not to enforce it is quite another thing. It is matter of his private discretion, and cannot be pleaded as a release or extinguishment of his claim. It is conceded, on all sides, that the character of Mr. Brown was that of liberality; a disposition not to claim money for services, but to act without thought or care for compensation. Still, he had a right to compensation in all cases where he did not expressly or impliedly waive it after the performance of them.

Has he so waived compensation for the services performed in superintending the dividends of the stock? I think there is no sufficient proof that he has. The directors had a right to fix his compensation, and to limit the amount; or to have told him, in February, 1816, when he was re-chosen as treasurer, that they would allow him no compensation. This was not done; and he therefore entered upon the office, confiding in the fair discretion of the directors under the articles. I think, too, that Mr. Brown could not have claimed any fixed amount of compensation; and unless the directors fraudulently or unreasonably denied him a proper compensation, his only remedy was an appeal to the justice of the directors. The ease, however, is not presented under this aspect; for the directors never acted on the subject. And the calamitous illness of Mr. Brown, for several years before ■ his death, disabled him from any final decision, whether he would waive his legal claim or not.

4. As to the extent of compensation, 1 cannot accede to the notion, that it ought to be any thing approaching the sum contended for by the executor. Mr. Brown has shown, by paying over all the proceeds in his hands, excepting about four or five thousand dollars, that he either waived any compensation at all, or else confined his claim to a far. smaller amount. He probably has incurred a loss of $1.600 in the service of the company; and if his sendees were gratuitous, to this extent, at least, in good faith and equity, the company ought to indemnify him. It would be hard to visit on his estate a loss honestly arising by mistake, in very difficult duties, performed gratuitously in the company’s service. My opinion, however, being, that Mr. Brown did not contract for gratuitous services, but intended to hold his rights, and leave the company to his own liberality in the event, his estate is now entitled to a reasonable compensation for them. His liberality of intention was never consummated by any definitive act; and his executor do*es not choose now to yield tip a legal claim upon any undefined intentions. I think a gross allowance of 2.000 dollars is an adequate compensation; but if the plaintiffs wish, I will decree a small sum more to enable them to take the opinion of the supreme court.

There must be a decree for the delivery up of the company’s books and papers, and a payment of the balance in the hands of the executor; but each party must bear his own costs. Decree accordingly.