Bonwell v. Auld

The appellant asks us to reverse the judgment •on the ground that the verdict is against the weight of evidence. .Surely, he should know that, on appeals from the city court, we have

Conceding, for argument, that an allegation of indebtedness is only an averment of a legal conclusion, still, as the complaint credits the defendant with a partial payment of the $350 claimed, the plain implication is of an unpaid balance of the amount. Marie v. Garrison, 83 N. Y. 14 . Hence, the motion to dismiss for insufficiency of the complaint was properly denied.

But it is said the plaintiff should have been nonsuited for insufficiency of evidence. The retainer of the plaintiff, and the rendition of the service, were clearly established, and the employment was to effect an exchange of defendant’s property. The allegation was of a promise to pay $350 for the service, and so was the proof. Yor, since the service was rendered at plaintiff’s request, was the contract without consideration. The law implied a promise to pay (Baer v. Koch, 2 Misc. Rep. 334 , 340, 21 N. Y. Supp. 974 ), and defendant’s express promise of a certain sum was evidence of the value of the service. Upfln a complaint in special assumpsit a recovery can be had on a quantum meruit, unless the objection of variance be taken (Domschke v. Railroad Co. [Sup.] 26 N. Y. Supp. 840 ), and no such contention is disclosed in the record.

Again, the appellant argues that the plaintiff could not recover, because of his charging commissions against both the principals. But the defense was not pleaded. Duryee v. Lester, 75 N. Y. 442 . The evidence is that defendant was informed of the fact, and assented to it. Rowe v. Stevens, 53 N. Y. 621 . Moreover, it appears that the parties themselves negotiated the terms of exchange; and an agent may well act for both principals in a ministerial capacity, as middleman. Knauss v. Brewing Co., 142 N. Y. 70 , 36 N. E. 867 ; Stewart v. Mather, 32 Wis. 355 ; Alexander v. University, 57 Ind. 478 ; Rupp v. Sampson, 16 Gray, 401 . In any event, after knowledge of plaintiff’s receipt of pay from the other party, the defendant, over and over again, promised his portion of the commission. Indeed, he actually paid something. A more complete ratification it is difficult to conceive.

The contention that a verdict for $345 is excessive, in face of the fact that the defendant repeatedly promised to pay $350, can hardly be complimented with the epithet of plausible.

On appeal from the city court, errors in evidence are not subject to revision by us, without appropriate exceptions. Schwinger v. Raymond, 105 N. Y. 648 , 649, 11 N. E. 952 . So far as we are permitted to examine the record, we perceive no error. Judgment affirmed, with costs. All concur.