Law v. Townsend

delivered the opinion of the court.

The written contract between the parties in this case, is contained in the letter of the appellee dated JYew York, 29th December 1834, and that of the appellant from Washington city, of January 10th 1835. All the testimony, oral and written, which was taken in the cause, except that taken under the rejected commission, has been received without objection. The other letters of the parties, and the other ■written and oral testimony, do not appear to have been taken with a view to alter, or change the written contract thus proved, but to establish •the controverted fact, whether Waterman’s claim, on account of the ship Mentor, was a elaim covered by that contract. The terms of the contract as expressed in the two letters referred -to, do not per se establish that fact; nor is it fully or distinctly shewn, by the other letters of the parties. And if such an inference might be drawn from them in the absence of all other proof upon the subject, we wish to be understood, as expressing no opinion, whether it is the province of the court or the jury to make such deduction. But when we connect the receipt of the appellee, given in evidence by the appellant, and the oral testimony with the letters, we are clearly of opinion, that it is -for the jury, and not the cowl, to decide whether Waterman’s claim was business sent by the appellee to the appellant, under the contract in question. There was evidence legally sufficient to be left to the finding of the jury, that such was not the fact, and as evidence for such finding, it might have been argued before the jury, that there was no proof that the rep*414resentatives of Waterman ever clothed the appellee with the power of sending the claim under any such contract; that on the contrary, the appellee sought the recovery of the claim, for persons who asserted rights to the fund adverse to the representatives of Waterman, who were ultimately recognized as the persons entitled; and it might also be legitimately insisted before the jury, that the appellee’s account and receipt, shewed that he did not claim his commission under the contract in the two letters referred to, but under a contract evidenced by some letter, not to be found in the record. The contract in the two letters was, that the appellant should allow the appellee a commission of live per cent, on all the business sent by the latter to the former. The title to the commission was complete by sending the business, and was in no wise made to depend on subsequent or antecedent services, to be rendered by the appellee. The account and receipt of the appellee for commission, in regard to the ship Mentor, is for “services rendered” by the appellee to the appellant, “in assisting him in proving the elaim against ship Mentor, Waterman master, for French spoliations under the French indemnity,” as per the appellant’s letter. It might therefore be urged to the jury, that they might infer from the account and receipt before them, that .a different .contract, mentioned in a letter not before them, existed between the parties. We mean not to say that in point of fact, upon the testimony before them, the jury were justified in adopting either of the findings suggested by the appellant; all we mean to assert is, that in that stage of the trial, the jury is the only competent tribunal to pass upon them; and that therefore the county court erred in withdrawing the facts from their consideration.

We think that the county court inadvertently erred in the first bill of exceptions, upon another ground. The plaintiff’s, the appellee’s instruction, as given by the court to the jury, was, “that according to the true construction of the correspondence between the plaintiff and defendant, as given in evidence in the shape of various letters read to the jury, the plaintiff is entitled to recover five per centum on the whole amount *415or sum of money, upon which the defendant received his com>mission of twenty-five per cent., if the jury should believe from the evidence, that the defendant did receive twenty-five per cent, commission upon the amount awarded, and received as the proceeds of the ship Mentor.” By this instruction the jury were informed by the court, that the plaintiff was entitled to recover five per cent, commission, on the whole amount awarded on account of the ship Mentor; whereas the uncontroverted receipt of the plaintiff in evidence before the jury shewed, that he had received his commission on one-half the said amount; and the whole proceedings in the cause demonstrated that he only claimed in this action a commission on a moiety of the said amount, that is, on Waterman’s claim.

We agree with the county court in refusing the three first prayers of the appellant in second bill of exceptions; because there was not sufficient evidence that such a conditional contract, as is stated in said prayers, was ever entered into by the-parties, to warrant the jury in finding its existence. And also in its rejection of the appellant’s third prayer, being of opinion, that if the jury should find that Waterman’s claim was not sent to the appellant by the appellee, there is in the account, receipt, and oral testimony, in the cause, evidence legally sufficient to have been left, to the jury, to warrant them in finding that the appellee was otherwise entitled to recover five per cent, commission on Waterman’s claim.

We concur with the county court in its rejection of the appellant’s several prayers in the second bill of exceptions; but dissenting from the instruction given by the court to the jury in the appellant’s first bill of exceptions, we reverse its judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED;.