Mackintosh v. Kimball

This is the second action brought to enforce the plaintiff’s claim. Upon the first action the complaint was, dismissed, which upon an appeal to this court was affirmed ( 58 App. Div. 25 , 68 N. Y. Supp. 492 ). The plaintiff haying testified as to the conversation with one of the defendants upon which he based his claim that a contract was made for compensation in addition to that which he had before received, this court said:

“The most that can be predicated upon such a conversation is that Mr. Kimball was favorably disposed to the consideration of the question of increased salary. But that no definite agreement of any kind was made for an increase of salary for any definite period or any stated amount is evidenced from the plaintiff’s own statement at the trial that he was to get a share in the profits of the buildings in addition to his regular salary. He did not claim that he was to be taken in as a partner, but that his additional compensation in some way was to be measured—how does not appear—by the profits realized upon the two buildings.. There is not sufficient in this vague and indefinite conversation to support a contract, because there is nothing to show that the minds of the parties met upon any binding agreement.”

The plaintiff then commenced this action to recover for the same cause of action. Upon the trial the plaintiff somewhat modified his account of the interview with one of the defendants. He testified that the defendants were copartners, doing business in the city of New York as .architects, and that the plaintiff entered their employ in October,. 1893, at a salary of $36 per week, receiving additional pay for overtime; that in February, 1895, he had a conversation with the defendants about his compensation, during which he stated that it was his intention

The only distinction between what the plaintiff testified to in the former action and his testimony upon this trial is that he now says that the defendants promised that the increase would be satisfactory to the plaintiff; that when the plaintiff asked Kimball how this was to be arranged so as to be satisfactory to him, Kimball said, “You can depend upon me; I will see that you get a satisfactory amount;” and that the plaintiff said that that was all right; that he would stay on and see the work through. Upon the former trial the plaintiff was examined and cross-examined as to his conversation with Kimball; but several years afterwards he remembered these additional statements, after it had been determined that his former testimony was not sufficient to entitle him to recover. But I do not think that this additional testimony helps the plaintiff. The whole conversation shows that no defi

There was here nothing from which a promise could be inferred that what the plaintiff would receive would be based upon a quantum meruit. The defendants proposed in the future to make some agreement which would be satisfactory to the plaintiff; but no basis upon which such increased compensation was to be estimated was suggested, except a general statement that Kimball’s idea was that the plaintiff was to be allowed some interest in the profits of the defendants’ business. The whole arrangement, as testified to, was so indefinite that it could not be the basis of a recovery. In United Press v. N. Y. Press Co., 164 N. Y. 406 , 58 N. E. 527 , 53 L. R. A. 288 , Judge Gray, delivering the opinion of the court, says:

“It is elementary in the law that for the validity of a contract the promise or the agreement of the parties to it must be certain and explicit, and that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite.”

Meislahn v. Irving Nat. Bank, 62 App. Div. 231 , 70 N. Y. Supp. 988 , was affirmed upon the distinct ground that, there being no certificate that the case contained all the evidence, the court was bound to presume that sufficient evidence was offered on behalf of the plaintiff to warrant the verdict, and was not at liberty to review the facts. The court was bound to assume that a valid contract had been made. The only question was whether evidence that was received was admissible.

We have not overlooked the distinction pointed out by counsel for the respondent between an action to enforce an executory contract to recover damages for its breach and an action to recover for services rendered under a contract executed by one of the parties to it. The plaintiff was in the employ of defendants, receiving a regular salary, which he continued to receive for the services rendered, If there was proof that an express contract had been made by which he was to receive additional compensation, he would be entitled to it; but it is just here that the plaintiff’s proof fails. He continued in the defendant’s employ, receiving the salary that had been agreed to. These services were not performed by the plaintiff under a new arrangement by which he was to receive any other or different sum for his services than that provided for by the contract under which he was employed. There is no contract which can be enforced which entitled him to receive anything in addition to that which was paid him and which he received as compensation for his services. If this promise is anything,

There is also an exception to a ruling upon a question of evidence which, I think, is clearly error, and which required a reversal of the judgment. The action was brought against the defendants as co-partners. The plaintiff continued in the employ of the defendants from the time of his original employment, in 1893, until he was dismissed from his employment, on June 4, 1898, at which time the copartnership between the defendants was dissolved. Mr. Kimball, with whom the plaintiff alleged he had the conversation upon which his claim is based, denied having made any agreement as testified to by the plaintiff, and denied that any promise was ever made to give him a share in the profits of the business. Upon rebuttal the plaintiff was recalled, and testified that he remembered a conversation which took place between himself and a Mr. Beckwith with Kimball about a month after the dissolution of the copartnership. The plaintiff was then asked to detail that conversation. This was objected to upon the ground that it was incompetent, irrelevant, and immaterial, and not binding on the defendant Thompson; upon the further ground that Thompson was not present, and the partnership had then been dissolved, and that nothing then said by Kimball could make a contract; that when Kimball was upon the stand his attention was not called to this conversation, and he was not asked anything concerning it. The court held that the plaintiff would have the right to give it as original evidence against Kimball, and therefore overruled the objection, and the defendants excepted. Mr. Beckwith was also called as a witness, and testified to that conversation, his testimony also being objected to, and the objection overruled, to which the defendants excepted. These witnesses testified that Kimball had then said that they had promised the plaintiff extra compensatiofi for work on the Altman and Empire buildings. The action being against the defendants as copartners, the obligation was a joint one. After the dissolution of the firm no admissions or declarations of one member of the firm were competent to bind his copartners. As this was not a several liability, an admission by one defendant could not be received as evidence against himself and not as against the other defendants, as there could be no several recovery. In Nichols v. White, 85 N. Y. 531 , the rule is stated:

“The declarations of one partner, after the dissolution of a firm, not made in the business of winding up, and not connected with any transaction or dealing connected with the dissolution of the partnership, are inadmissible against his copartner. He may bind himself by his admissions, but as to his former partners his agency, except for special purposes, is terminated by the dissolution, and his admissions are like those of a stranger, and they are not bound by them.’’

Counsel for the plaintiff has adopted a most unusual method of printing in his brief what was evidently a private letter of one of the judges of the Court of Appeals refusing an application to allow an appeal from a judgment in the former action to that court. We are certainly not justified in accepting this letter as a statement of the views

It follows that the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellants to abide the event All concur; HATCH, J., on second ground.