Jones against Dunn, 3 Watts & Serg. 109

The opinion of the Court was delivered by Gibson, C. J. In the charge of full factory expenses for the Globe, there is a clear error of $1117, made on the one hand, and acquiesced in on the other, palpably by mistake. It appears by the defendant’s letters that the Newport and the Woodrop Sims had preceded that ship in her arrival at Canton in the same year, and he was consequently entitled by the terms of the contract to charge no more for her than $550.

Now, though the charge was received without objection when the account was rendered, that does not preclude the other side from showing an unobserved error which had passed without notice by the common blunder of all parties. Such an error might be corrected even in a settled account, where neither party had been prejudiced by the acquiescence. The item, therefore, must be reformed.

The other part of the case is with the defendant. “ We are emboldened,” said the plaintiffs, “ to make thee a proposal to remain as our agent for a further term of-years, from the 7th mo. 13, 1828; and should it be agreeable to thee to remain, we will engage to make consignments to thy address to an amount that will insure thy commissions to amount to $25,000 at least.” And subsequently: “ We are willing to state distinctly that on being advised of thy acceptance of this proposition, we bind ourselves to the fulfilment of it by the payment of the above sum annually, though from unforeseen events we should not ship the amount that would produce that sum.” These terms were accepted, and the blank was agreed to be filled with the period of two years.

Now, these clauses, considered in connection with an unaltered stipulation in the original agreement, which has been the basis of every subsequent one, that the defendant’s commissions should be invested in return cargoes as his separate property at Canton, show very clearly that his accounts were to be closed annually at the end of the contract year: consequently, that he was entitled to the whole excess of actual commissions for each year above the guarantied amount, without regard to any deficit in the year past or to come, or to the aggregate of the commissions for the term.

As by the words of the agreement payment was to be made annually, the account was to be made up annually, and not, as contended, at the close of the business; independently of which, it was necessary to close it annually that the defendant might pay himself out of the funds in his hands in order to invest his commissions in return cargoes and ship the produce of them according to the terms of the original agreement. If, then, the account were closed at the end of the year," and the balance paid, it would be a singular method of doing business to open it in order to vary the balance by subsequent events.

The account was not only to be made up, but the balance was to be paid by taking credit for it, instead of being held in reserve for contingencies; and when thus paid, the money belonged to the defendant, without regard to the future. If it did not belong to him absolutely, it could not be said to belong to him at all.

Had he died at the end of the first year, having received the commissions then due, liis executor would not have been bound to refund any excess beyond the guarantied amount in case the commissions of his successor had fallen short of it for the next year; nor could the money, if not actually paid, have been detained from him in anticipation of that event. Such a detention would have been a breach of the plain terms of the contract.

The argument on the part of the plaintiffs, however, is not that it could have been detained or recovered back, but that its amount might be taken into consideration to affect the question of deficiency for the other year. That, however, would cast the burthen of1 making up a deficiency on the defendant, and not on the plaintiffs, who by the words of the agreement are bound to bear it: a result that could be obtained only by making the contract entire.

But it will not be pretended that if the defendant had received his commissions for the first year, and died the day preceding the completion of the second, his executor would have been bound to refund the whole. Yet that result would be inevitable on the principle of Cutler v. Powell, (6 T. R. 824), if the contract were indivisible; for the right to receive anything before performance of the whole service, would rest on the question of divisibility alone. But this contract is divisible by the very nature of its terms, which evidently have regard to a distinct set of operations for each year.

Thus the plaintiffs agreed to send at least two ships annually to Canton by the way of England ; and to allow the defendant for factory expenses in proportion to the number which should arrive within the year, of which the plaintiffs have just had the benefit in the reduction of the charge for the Globe. Why, then, shall they not submit to the disadvantage which results from an application of the principle to the subject of commissions, when the contract is just as divisible in regard to them as it is in regard to anything else ?

They must be charged separately for the particular year, and without reference to previous or subsequent deficiency or excess. In this we are of opinion the defendant’s

interpretation of the contract is the true one. Judgment on the verdict accordingly.