Booth Bros. & H. I. Granite Co. v. Baird

The first question presented is whether the contract was joint or several or joint and several on the part of either or both of the parties thereto. In form, manifestly, the contract is joint, and joint only, on the part of the vendors, and joint, and joint only, on the part of the purchasers. It appears, however, that the vendors were corporations engaged in business separately, and the purchasers were severally engaged in business as paving contractors; some in both the cities of New York and Brooklyn, and some in only one. It is contended that the plaintiffs could not lawfully become partners in supplying paving stone to the defendants, and that, consequently, they cannot jointly maintain an action upon the contract; but manifestly the undertaking was joint on the part of the plaintiffs, although in fact as between themselves each was to contribute, as near as practicable, an equal amount of the paving stone. There is nothing in the contract by which the purchaser could maintain an action against, either of the plaintiffs separately for a failure to de-

The appellants also contend that the liability of the purchasers was several, and not joint. In support of this contention it has been shown not only that the purchasers had theretofore had no partnership relations, but that thereafter they severally bid upon and obtained contracts for paving in New York and Brooklyn, and that the-paving stone delivered under this contract was actually delivered to- and used by the purchasers upon their respective individual contracts, and paid for by them severally, except as to that part of the-purchase price which has not been paid. These facts do not necessarily show a controlling practical construction of the contract by the parties. They are consistent with a joint liability on the part of the purchasers, and such, we think, is the effect of the contract. It is evident that the purpose and object of the plaintiffs was to maintain a price for paving stone that would net them a reasonable profit. They had theretofore been competitors, but by this contract virtually ceased to be competitors as to all paving work in New York: and Brooklyn during the period covered by it. It does not expressly appear, but the inference is plain, that they practically had' a monopoly and control of the particular kind of paving blocks to which the contract relates. While it was not expressly" covenanted, that the contractors would not sell similar paving blocks to other contractors in the cities of New York and Brooklyn, that apparently was the object and intention of the parties; and thus the purchasers^, in effect, obtained control of the paving to be done in New York and Brooklyn during the time specified with that kind of paving blocks, for it is provided that, in addition to using the paving blocks in performance of their own contracts, they are at liberty to sell to the cities should the municipal authorities undertake the work of paving without letting contracts therefor. We have not overlooked their testimony that they continued to be competitors in bidding upon paving work in these cities, but that is not controlling. The object of each of them in entering into this contract is plain. It was that each should know that he was to receive the paving blocks required in the performance of his contracts on as favorable terms as the other, and in order to accomplish this result they saw fit to enter into a joint contract. There is evidence indicating a good understanding at least between the purchasers, for it appears that from time to time one would take a contract from the other at the price at which it was let and perform the work and receive the profits. When contractors came to an understanding as to a division of work without competition, they can arrange to let one of their number be

• Assuming the liability to be joint, the appellants contend that they have been discharged, owing to dealings between the plaintiffs and Smith and Kelly, the other joint purchasers under the contract. Upon a former trial of the issues before a referee the plaintiffs recovered. These appellants then appealed, and the judgment was reversed as to them on account of an overcharge, the defendants having been charged for the amount of paving stone that would have been used under a particular contract in paving the space occupied by the tracks of a street railroad, which space was not in fact repaved. Booth Bros. & Hurricane Isle Granite Co. et al. v. Baird et al., 87 Hun, 452 , 34 N. Y. Supp. 392 . That judgment was a lien upon two parcels of real estate owned by the defendant Smith, who died during the pendency of this action. His executors sold and conveyed the premises, and the plaintiffs joined in a quitclaim deed to the purchasers reciting a consideration of $1.- On the 14th day of July, 1892, while the action was pending, the president of the plaintiff Booth Bros. & Hurricane Isle Granite Company and the president of the plaintiff New York & Maine Granite Paving Block Company individually entered into an undertaking with defendants Smith and Kelly reciting that they had paid the plaintiffs upon the contract the amount for which they would be liable if the contracts had been saved, and the amount for which in equity and good conscience they should be held liable, whereby they agreed, in substance, to hold said Smith and Kelly harmless from any damages by reason of any judgment in this action. The undertaking does not purport to have been executed by authority of the plaintiff corporations, nor is it shown that they authorized its execution. The appellants contend that these facts constitute a compromise of the plaintiffs’ claims against Smith and Kelly, or at least as against the former, without reserving their claim against the other joint debtors, and that, therefore, all are discharged. It is provided in section 1942 of the Code of Civil Procedure that the discharge of one joint debtor

The contract being joint, any counterclaim properly established against the plaintiffs inures to the benefit of all defendants. Booth v. Cleveland Rolling Mill Co., 74 N. Y. 15 , 26; Clark v. Patton, 27 Ky. (4 J. J. Marsh.) 33, 20 Am. Dec. 203 . It is contended that the referee erroneously disallowed a counterclaim interposed by the defendant Hart for $2,592 for the expenses of handling, hauling, and storing paving blocks delivered prematurely. The complete answer to this claim lies in the fact that the referee has found upon conflicting evidence that the paving stone was received and accepted without any agreement or understanding for compensation in this regard, and the evidence is sufficient to sustain the finding. Another counterclaim which • it is claimed was erroneously disallowed was for breaking and fitting paving blocks which it is claimed did not conform in dimensions with the requirements and specifications of the city. Upon this point also the referee has found upon ample evidence that the paving stone was accepted, retained, and used without objection, and that the purchasers have thereby waived their right to object. Another counterclaim of $1,128 for expenses of storing, hauling, and moving, and extra work in laying paving stone rejected as not conforming to the specifications as required by the city, has been disallowed. There was evidence sufficient to justify a finding that the plaintiffs were not notified of such rejection and called upon to take back or otherwise dispose of the rejected paving stone, and that the purchasers themselves removed or acquiesced in the removal of it, and used the same upon other contract work.

The plaintiffs have recovered the sum of $8,739.75 and interest thereon from the 6th day of March, 1890, as demurrage on account of the alleged failure of the defendants to provide, within the time specified in the contract, dockage for vessels arriving with cargoes of stone and facilities for removing the cargoes as rapidly as called for by the contract. The contract is silent on the question of demurrage. The plaintiffs were obligated under their shipping bills to pay demurrage upon certain terms and conditions, and it appears that the plaintiffs did pay demurrage in an amount nearly equal to that for which they have been allowed. The cargoes were consigned to the plaintiffs, and the purchasers were not parties to the shipping contracts. The liability of the purchasers is to be determined solely by their contract quoted in the statement of facts. The plaintiffs, apparently for their own convenience, commenced shipping the stone • into the harbor of New York before the purchasers obtained contracts, and without any formal notice or request from the purchasers therefor. The purchasers were notified of the arrival of one or two vessels loaded with stone, but there is no evidence that any demurrage was charged on account of these vessels. There is evidence that the plaintiffs notified the purchasers of the arrival of other vessels; but it does not appear that the purchasers were notified of the arrival of any of the vessels for which demurrage has been allowed. The plaintiffs were aware of the fact that the purchasers had not obtained

There is evidence tending to show that the purchasers agreed to become responsible for the item of wharfage for which a recovery has been allowed.

The executrix of the deceased defendant Baird contends the estate which she represents is not liable to the plaintiffs, inasmuch as it has not been shown that the surviving joint debtors are insolvent. This contention seems to be fully supported by the case of Potts v. Dounce, 173 N. Y. 335 , 66 N.