Cohen v. Bass — 138 A.D. 504

Majority

p. 504

Jacob Cohen, Respondent, v. Joseph Bass, Appellant.

Second Department,

May 26, 1910.

Headnote

Statute of Frauds — partnership — guaranty as to profits.

A contract in the nature of a partnership hy which one party guaranteed to the •other that his portion of the profits should amount to at least a certain sum per week, is not within the Statute of Frauds.

Appeal by the defendant, Joseph Bass, from a judgment of the Supreme Court in .favor of the plaintiff,- entered in the office of the clerk of the county of Kings on the 21st day of December, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Solomon K. Eisler, for the appellant.

Michael Kaufman, for the respondent.

The pleadings in this case are somewhat confusing. It is apparent that the pleader was not clear in his expression of facts going to make up his cause of action, but we are of the opinion that the case as it finally went to the jury was not at all confused/ The learned court in charging the jury cleared the atmosphere, and the charge, ■to which no material exception survives, placed the case in such a position that it must be presumed that the jury acted intelligently upon it. The theory of the action was that the defendant induced the plaintiff' to go into an arrangement (something short of a partnership, as appears from the evidence), by which the plaintiff and

p. 505

the brother of the defendant were to manufacture certain lines of goods for the defendant, and the latter undertook to guarantee to the plaintiff that his portion of the profits should amount to at least fifty dollars per week; that the profits realized did not amount to this sum, and the plaintiff claimed to recover the difference between the amount that was earned as profits and the fifty dollars per week which was guaranteed. The defendant disputed this claim, and this was the issue litigated between the parties, resulting in a verdict for the plaintiff.

We are clearly of the opinion that the case was not within the Statute of Frauds, and the jury having found, on a conflict of evidence, in favor of the plaintiff under a charge which so fairly stated the case that the defendant did not preserve a single question of law to be reviewed, we see no ground on which the judgment or order should be reversed.

The judgment and order appealed from should be affirmed, with costs.

Hirschberg, P. J., Woodward, Thomas, Rich and Carr, J J., concurred.

Judgment and order affirmed, with costs.