Russell v. Bardes — 39 N.Y. St. Rep. 41

Majority

p. 41

George E. Russell et al., App’lt, v. Frederick E. Bardes, Resp’t.

(Supreme Court, General Term. Second Department,

Filed May 11, 1891.)

Headnote

1. Partnership—Prior contract.

In an action by plaintiffs, for work done and materials furnished by them, as copartners, for defendant, it appeared that the plaintiff R. was indebted to defendant, and agreed t,o do the work in payment of his indebtedness, but before entering upon it, and without defendant’s knowledge, he entered into a partnership with defendant M, and the work was performed by them. Held, that plaintiffs could only recover the amount due after deducting the debt of R. to defendant.

2. Costs—Mutual account.

Plaintiffs recovered judgment for $40.20, the amount due after deduct- • ing defendants’claim against R., and judgment given defendants for costs. Held, that it was not a case of mutual accounts, and the balance only, after deducting the amount of R.’s indebtedness to B., constituted the matter in controversy.

Appeal from a judgment of Richmond county court, entered on a verdict of a jury, and also from the taxation of costs.

George Widdecombe, for app’lts; George J. Greenfield, for resp’t.

—This is _ an appeal from a judgment entered upon the verdict of a jury in the county court of Richmond county. There is also an appeal from the taxation of costs.

The jury, in effect, found that the claim for which the suit was brought arose under a special contract between the plaintiff Rus

p. 42

sell individually and the defendant, and the evidence supports that finding.

If there was a special contract that Russell should do the work specified in payment of a debt which he then owed the defendant, and also ih payment of such further advances in merchandise as the defendant might sell Russell, whatever arrangement the latter might make with another person, could not affect such contract.

Undoubtedly, the main consideration of employing the plaintiff Russell by the defendant was to secure the payment of Russell’s indebtedness, and especially so must have been the trusting of him for more goods.

The jury probably thought it would be a fraud to allow the plaintiff to recover upon the ground that he had a partner and thus avoid the payment of his just debts.

Assuming there was a partnership it was not entered into until after the contract was made with the defendant so that at that time Russell’s services were pledged to the defendant and the work was all done under that contract. To allow Russell now to rescind that contract and recover upon the ground that he had a partner would be a gross fraud upon the defendant. Story on Part., §§ 132-133; Lindley on Part., 269.

The case was fairly submitted to the jury and no exception to the charge discloses any error sufficient to warrant a reversal of the judgment. We also think the defendant was entitled to costs.

It was not a case strictly of mutual account, but as fast as the plaintiff Russell earned anything it was a payment pro tanto on account and the balance only, after the amount of the payments are deducted, constitutes the matter in controversy, which did not amount to a sufficient sum to oust the jurisdiction of a justice’s court. Brisbane v. Bank of Batavia, 36 Hun, 17 ; Burdick v. Hale, 13 Abb. N. C., 60 ; Matteson v. Bloomfield, 10 Wend., 555 .

1 It is clear under the proofs that $174 of defendant’s claim against Russell was a liquidated claim as it was an old account which had Been presented to and admitted by Russell and which he had promised to pay, so that deducting that amount from Russell’s claim the balance of the contested items did not exceed $400. It was not a case of mutual accounts.

The order allowing costs must, therefore, be affirmed.

Barnard, P. J., and Dykman, concur.