Muzzy v. Whitney — 10 Johns. 226

Majority

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Muzzy against Whitney and others.

NEW YORK,

May, 1813.

Headnote

A. and B.havinfo a" con-turnpike^cor-make ""and* complete a afterwards^’ greementwith c. “to let share of the mmakingthe mHes^of 'the road, in pro-j)eí° the íame ; ^the to be taken part) and' the B*s part™ It was held greemenF did ^partnership and B°a id c" but was a ’ payhig c’.^for labourand that the una and'ft. was wí-e ^jointly liable to c. on ment. And wgFatu?tously subscribed and paid by the inhabitants, to assist A. and B. in completing the road, it was held that C» was entitled, under the agreement, to his proportion of such sum; and also to be allowed, as an advance by him, for the board and lodging of the workmen employed by A. and B. on the road.

Where an insolvent, under the act of the 3d of April, 1811, (sess. 34. c. 123. s. 25.) presented his petition to the first judge of the county, who appointed a day for the creditors to appear and show cause, tec. and before the day a commissioner was appointed for the county, and the insolvent» on the day, presented his petition, &c. to the commissioner, who completed the proceedings so begun before the first judge, and granted a discharge to the insolvent; it was held that the dis«i charge was void for want of jurisdiction in the commissioner, the act having made no provision i& such a case, and he having no authority» unless the proceedings were commenced de mnv*

THIS was an action of assumpsit. The declaration stated' that on the 9th of July, 1807, a certain discourse ivas had and ¿ between the parties, of and concerning the making of the miles of the Chenango Turnpike Road, which road the defendants had before that time contracted with the Chenango Turnpike Corporation to make; and the defendants agreed, ^t ^ ^ie plaintiff would advance them a certain sum towards making the road, and help them to complete the road, that he should be paid for what he should so advance, out of the profits they should receive for malting the road, and should be the sum he advanced in proportion as the defendants were paid for what they advanced; that accordingly the defend-ds made their certain memorandum- in writing dated the 9th of *^T ¿07, and delivered it to the plaintiff, by which the defendants certified that they had agreed to let the plaintiff have a share of the profits, if any there were, in making the second 10 miles of the road, in proportion to the help he should afford in completing the that one half of the profits were to be taken from. Whitney’s part, and the other from Burritt’s and Andrews’ (the other defendants) part. The plaintiff averred that he advanced *6 defendants, towards making the said road, a large stun in. ’ labour, provisions, See. &c. the money advanced being 223 dollars and 65 cents, and that the whole sum expended by the defendants, in making the road, was only a small part of what t^ey received for making the same, to wit, 1,721 dollars and 68 cents; and the defendants received for making the road 4,148 dollars and 25 cents, and that the plaintiff’s share of that sum was 526 dollars and 90 cents, including the money advanced by him to the defendants; and which sum of 526 dollars and 90 cents was his share of the profits received by the defendants. By whereof the defendants became liable, &c. and, being so liable,

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assumed, &c. Yet, &c. The declaration' also contained the usual money counts. '

Andrews, one of the defendants,

pleaded non assumpsit, with notice of his discharge under the insolvent act.

Whitney, another defendant,

pleaded non assumpsit, with notice that on the 7th of July, 1807, the defendants made the contract with the Turnpike Corporation for making the road; that a partnership was then entered into between the plaintiff and defendants, as to making the road, See.

The other defendant, Burritt, also pleaded non assumpsit, with a similar notice.

The cause was, by a rule of this court, referred to three referees, who made a report stating the evidence and facts in the cause, as they appeared before them. The written agreement between the parties referred to in the plaintiff’s declaration was as follows: “ This may certify, that L A., N. W. and I. B., agree to let A. Mussy have a share of the profits, if any there be, in making the second ten miles of the Chenango Turnpike Road, in proportion to the help he affords in completing the same, the one half to be taken from Whitney’s part, the other from B.’s and A.’s part.”

The parol evidence as to the partnership was various and contradictory, consisting of the declarations of the parties at different times. It appeared that the plaintiff had boarded and lodged the workmen employed by the defendants on the road, for which he was allowed in his account by the referees.

The discharge of Andrews, dated the 17th of September, 1811, was produced to the referees. It was granted by Thomas Hubbard, Esq. commissioner of the county of Madison. It stated that Andrews had presented his petition, &c. to the first judge of the county, who appointed the 17th of December for the creditors to appear before him to show cause why the insolvent should not be discharged, of which due notice was given, &c. that before that day Thomas Hubbard was duly appointed a commissioner under the act; and that on the 7th of September, the insolvent presented to him, the commissioner, his petition and papers with the proceedings of the judge, to complete the proceedings according to the directions of the act; and whereas it appeared that the said insolvent had conformed, Sec, therefore, he granted the discharge, &c.

By consent, the question as to the competency of this discharge

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was reserved for the opinion of the court; and also whether the plaintiff was entitled to his share of 351 dollars gratuitously subscribed by the inhabitants, and paid to the defendants. The referees reported in favour of the plaintiff a balance of 291 dollars and 35 cents, allowing his share of that subscription; but if it was not allowable, they then found a balance due from the defendants to the plaintiff, of 254 dollars and 54 cents.

Kirkland, for the plaintiff.

Randall, for the defendants.

The first and principal question in this case is, whether the parties to this suit were copartners in the business to ' which the suit relates, so as to disable the plaintiff from suing the defendants at law. The referees have reported the proofs taken before them touching, the alleged partnership. The parol proof is so contradictory as to amount to nothing. There were repeated confessions of the plaintiff that went to prove, and repeated confessions of the defendants that went to disprove, a partnership. The written evidence is the best test of the sense of the parties, and from that it appeared that the defendants contracted with the turnpike company to make and complete the road therein specified, and that shortly thereafter, the defendants agreed to let the plaintiff have a share of the profits, if any, in making the road, in proportion to his help. This appears to have been only a mode paying the plaintiff for his help and labour. It is like the case of Hesketh v. Blanchard, (4 East, 144.) in which there was an agreement for so much of the profits as a compensation for trouble and credit; or like the case of Dry v. Boswell, (1 Campb. N. P. 329.) in which A. owning a lighter, employed B. to work it, and that the net profits should be divided; or like that of Wilkenson v. Frasier, (4 Esp. N. P. 182.) in which the wages of the sailors were to be paid out of the profits of the voyage, in proportion to the amount; and in neither of those cases were the parties regarded as partners in respect to each other, so as not to be able to sue in a court of law.

2. The second objection is, that the defendants were not liable to be sued jointly, as, by the agreement, one half of the plaintiff’s compensation was to be taken from Whitney’s part, and the other from Burritf s and Andrews’ part. But it was still a joint under

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taking on the part of the defendants, and this latter part of the memoranthim was only a designated mode of distribution of the debt, as between ihe defendants. In Byers v. Doby, (1 H. Bl. 236.) two persons engaged to pay a third person equally, and this was held to be a joint undertaking in respect to the third person.

3. The sum obtained by the gratuitous subscription went to constitute the profits of which the plaintiff was to have a share, and the amount thereof was properly included by the referees in the liquidation of the accounts. As the plaintiff was to be paid for his help, there can be as little doubt that the boarding and lodging of the workmen was part of that help, and properly allowed.

4. The discharge of one of the defendants under the insolvent act was void for want of jurisdiction in the commissioner who granted it. The commissioner appears to have assumed the proceedings as they were left by the first judge, without any new petition, oath and notice. But the act of the 3d of April, 1811, made no provision for such a case, and the commissioner had no jurisdiction in the case, unless he commenced the proceedings de novo, or unless in one of the cases specified in -the 20th section of the act referred to, and this was not one of those cases.

The plaintiff is accordingly entitled to judgment against all the defendants, for 291 dollars and 35 cents, as reported, together with his costs to be taxed.

Judgment for the plaintiff.