Jenkins v. Dean — 7 N.Y.S. 850

Majority

p. 850

Jenkins v. Dean.

(Supreme Court, General Term, Second Department.

December, 1889.)

Headnote

1. Assumpsit—Instructions—Amount Due.

In an action to recover one-third of the net profits realized on certain contracts by defendant, where there is no dispute as to his liability if there are any profits, but where he claims that the sum to which he is entitled as compensation for the use of ■ his tools and machinery, and for an item of disbursements paid by him, is sufficient

p. 851

to wipe out any apparent balance of profits on the contracts, it is in accordance with justice for the trial judge to charge that the jury should find as to the disputed item of disbursements, and as to the value of the use of tools and machinery; to correct the apparent balance of profits in accordance with the finding as to the disbursement, and to deduct from the resulting figures the value of the use of tools and machinery; and to find for plaintiff one-third of the residue, if there should be any.

•2. Same—Complaint—Sufficiency.

In an action at law for services performed, the fact that plaintiff asks for an accounting of the profits realized by defendant on certain contracts, to ascertain the amount of plaintiff’s compensation, does not make his complaint demurrable on the ground that it does not state a cause of action.

3. Same—When Cause of Action Acobubs.

The contract being entire, plaintiff's right of action accrued on the completion of the work; and the fact that defendant had not been paid part of the money on his contracts when the action was brought, does not render it premature.

Motion for new trial on exceptions.

Action by Theodore S. Jenkins against William B. Dean for an accounting to determine the amount of profits realized by defendant on two contracts with the city of New York for the construction of sewers on Eighth and Eleventh avenues, and for one-third of the net profits. Defendant employed one W. L. Holmes to superintend the construction of these sewers. They -entered into a written contract under which defendant was to furnish all money, tools, and machinery necessary for the performance of the work, and was to receive a fair compensation for the use of his tools, and two-thirds of the net profits. Holmes was to furnish his labor as superintendent of the work under instructions from defendant, and in lieu of salary was to receive for his services one-third of the net profits. Holmes assigned his salary to ■one Kingsley, who subsequently assigned to plaintiff. Defendant, in his answer, claimed, among other things, that the work had not been completed; that he had not been paid therefor; and that, until the completion of the work .and the payment therefor, the profits could not be ascertained. It was admitted on the trial that the city had paid defendant $38,603.40, and that the ■disbursements were $34,594.94, leaving a balance of $4,008.46 in defendant’s favor. He claimed $5,925 as compensation for the use of his tools on the Eleventh-Avenue sewer, and $410 on the Eighth-Avenue sewer. These ■charges were alleged to be extortionate by plaintiff. There was a verdict of $1,021.15 in plaintiff’s favor at the circuit court for Kings county, and judgment thereon, and defendant moves for a new trial. -

Argued before Barnard, P. J., and Pratt, J.

Bergen & Byktnan, ( William, N. Dyhman, of counsel,) for plaintiff. Jas. JSdwd. Graybill, for defendant.

This was a legal action. The evidence shows that defendant had a contract with the city of New York for the construction of certain sewers. The defendant agreed with Holmes to furnish all tools, machinery, and money needed to perform the work. The agreement provided that the defendant should receive a fair compensation, for the use of the tools and machinery, and two-thirds of the net profits of the work. Holmes was to be the superintendent under defendant, and was to receive one-third of the net profits of the work for his services. Holmes assigned to the plaintiff his ■claim to the one-third profits provided by the agreement as the means of compensation for his services.

It may be necessary to take an account of the profits to reach the amount of compensation, but the accounting is only a means by which the value of the work claimed is to be ascertained. The objections, therefore, that there were no facts to warrant an equitable accounting, and no facts stated in the complaint sufficient to make a cause of action, were properly overruled.

It appeared on the trial that this action had been commenced while certain percentages on work done had been retained by the city of New York. It

p. 852

was conceded at the trial that there had been paid for one sewer $24,425.55, and $14,177.85 for another, by the city of Mew York, and that the last payment completed the payments for the work, and this was made nearly a year before the trial. The disbursements for the Eleventh-Avenue sewer were-shown to have been $20,220.08, and $14,542.34 for the other. This left a balance of $4,008.46 out of which was to come the cost of the use of the tools and machinery. It was the subject,of dispute as to the accounts whether an item of $407 was properly charged among the disbursements of the work. It is also the subject of dispute as to the fair value of the use of the tools and machinery furnished by the defendant. Under this state of the proof, the judge charged the jury to find as to the disputed item of disbursement, and as to the use of the tools; to correct the apparent balance in accordance-with the finding as to the disbursement, and to deduct from the resulting figures so made the use of the tools and machinery; and to find for the plaintiff one-third of the remainder, if there should be any. This was in accordance with justice. The defendant had received some of the money after action commenced, but the effect of that was to make certain a calculation which without it would have been more difficult to ascertain. The cause of action was good when it was commenced. All the work had been done. The money had not all been paid over. The case is stronger than Everson v. Powers, 89’ M. Y. 527, when the court of appeals permitted a plaintiff to recover when the action was brought for a breach of an entire contract for services before the term of service was ended; but the term had ended before the time of the trial. The court stated the rule of damages to bo the same as it would be in case of the commencement of the action after term had ended. The judgment should therefore be affirmed, with costs.