Lewis v. Whitehall Lumber Co. — 14 N.Y. St. Rep. 302

Majority

p. 302

Morgan Lewis, Resp’t. v. The Whitehall Lumber Co., Limited, et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed February, 1888.)

Headnote

1. Contract—Construction op.

This action was brought for the dissolution of a partnership and accounting between the partners and was tried before a referee, resulting in a decree dissolving the partnership and adjudging that the defendant pay a certain sum to the plaintiff. It was found by the referee that by the contract constituting the co-partnership, it was agreed that after the defendant in consideration of the assignment to them as security of a contract which the plaintiff had procured should advance the money necessary to fulfill it, and should actively assist in its fulfillment. The plaintiff and one of the defendants to devote their time to certain specified-parts of the work, profits or losses to be- borne equally by the parties. Held, that in the absence of

p. 303

any agreement to pay interest on advances the referee was justified in construing the agreement to mean that the defendant would furnish the money required for the privilege of sharing in the profits of the contract which plaintiff had procured, and that interest was properly disallowed.

2. Referee’s findings—When not disturbed by appellate court.

Held. That charges, the allowance or rejection of which was dependent upon conflicting evidence, would not he disturbed by an appellate court, the referee having had the advantage of hearing the testimony of the witnesses and the benefit of personal examination of the hooks and papers.

J. Sanford Potter, for app’lts; Charles S. Lester, for resp’t.

This cause was tried before a referee and resulted in a judgment dissolving the partnership heretofore existing between the plaintiff and the defendants, and adjudging that the defendants pay to the plaintiff the sum, of $9,189.29 with the costs of the action.

On this appeal the error assigned by the appellants consists in a finding of the referee disallowing certain expenses alleged by the defendants to have been incurred for the. benefit of the partnership amounting to......... $4,370 85

And also disallowing a claim for interest in the sum of..................................... 3,507 67

In all......................................$7,878 52

The testimony of the plaintiff and the defendant Burleigh, together with the acts of the parties subsequent to the making of the first contract justified the referee in finding that by the contract constituting the co-partnership, it was-argued that the defendants in consideration of the assignment of the contract to them as security (which plaintiff had procured for furnishing a given quantity of ties to the Delaware and Hudson Canal Company), agreed to advance the money necessary to fulfill the contract and to actively assist in the fulfillment thereof. The .plaintiff and Charles. McCaffrey to devote their time to the purchase and shipment of such ties. Profits to be divided equally between McCaffrey, plaintiff and defendants. Loss, if any, to be equally borne by same parties.

In the 'absence of any agreement to pay interest on advances, the referee was justified in construing the agreement to mean that the defendant would furnish the money required for the privilege of sharing in the profits of the contract which plaintiff had procured. Interest was therefore properly disallowed.

As to the items sought to be charged against the partnership by the defendant for office expenses, dockage, traveling expenses, etc., aggregating $4,370.85, a portion of them were not properly chargeable by the terms of the contract

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as found by the referee, and the allowance or rejection of the residue depended upon either conflicting or insufficient testimony as to which a careful examination of the evidence does not seem to justify a reversal of the conclusions of the referee who had the advantage of listening to the testimony of the witnesses and the benefit of a personal examination of the books and papers produced before him.

J udgment affirmed, with costs.

Landon and Fish, JJ., concur.