Wilson v. Davis

5 Watts & Serg. 521

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1843
• Status: Published

Opinion

The opinion of the Court was delivered by

Gibson, C. J.

— The agreement is to be construed with a view to the object intended to be effected by it, which was to secure to the plaintiff below a reasonable compensation for his services as a party printer. The defendants were the proprietors of a country newspaper on the eve of a political campaign; and they cast about for an editor to conduct it on his own risk and credit by giving his time, trouble, and the influence of his talents, to the cause in which they were.engaged. -It was supposed that 400 subscriptions would yield him an. adequate compensation; for the plaintiff stipulated for no more. When the defendants, therefore, sold him the press, type and stock, they undertook to procure for him 400 responsible subscribers in the course of a month; but certainly these were not to be in addition to those on the subscription-list which passed as an accessory of the establishment. Giving to the undertaking a reasonable construction, and judging of it by its scope instead of particular expressions, it is a contract of guaranty by which the defendants engaged for a particular number of subscribers in all; and this, too, whether the plaintiff should be willing to accept all or any of those on the transferred list as a part of it. He had nothing to do with acceptance or choice. The defendants were bound for 400 responsible subscribers; and their solvency was their concern, not his. They were to be produced like the contingent of a German prince, and mustered into service without inspection. The defendants were bound for the requisite number of subscriptions, and they might have subscribed the whole number themselves. Nor were the 400 to be exclusive of those procured by the plaintiff himself. To have stipulated for a right to recruit on separate account, would have given to the agreement an appearance of trick like those stock-jobbing contracts to deliver a given number of shares at a day certain, in which the seller’s performance has been forestalled by what is called cornering ; in other words, buying up all the floating shares in the market. These contracts, like other stock-jobbing transactions in which the parties deal upon honour, are seldom subjected to the test of judicial experiment; but they would necessarily be declared fraudulent. Now in a county where the subscribers must be obtained from the political minority, a contract allowing the plaintiff to seek subscriptions for himself, would be open to the same abuse; and as no design to obtain an unfair advantage is imputed* we are bound to give the agreement an interpretation which will not put the plaintiff in the predicament of such a contractor. The meaning of the contract, as it was understood by the parties themselves, must therefore have been inconsistent with the interpretation put on it by the plaintiff’s counsel; and the defendants are entitled to be credited with the actual number of responsible subscribers by whomsoever procured.

The jury were properly instructed that the sale became absolute by want of notice of its recision before the expiration of the appointed period ; but there was error in leaving them to determine whether the defendants had agreed to rescind the contract subsequently, when there was not a spark of evidence to raise the question. It was shown that the plaintiff had given notice of his determination to rescind after the day, and it is testified that two of the defendants had entertained an offer to purchase, as if the establishment were still the property of the defendants; but it was not pretended that the others had been consulted, and the direction, predicated, as it may have been, of this part of the evidence, had a tendency to mislead.

Judgment reversed, and a venire de novo awarded.