Akin v. Luce — 45 N.Y. St. Rep. 692

Majority

p. 692

Albro Akin, App’lt, v. Alfred J. Luce, Resp’t

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Joint adventure—Rights of parties to.

A mere refusal by one party to a joint adventure to contribute any part, of the capital to carry it on, even if unjustifiable, only authorizes the other party to refuse to go on with the adventure and to terminate the-relations between them; it will not authorize the other party, after availing himself of the services of the party failing to contribute, to deprive him of his share in the piofits realized upon the adventure.

Appeal from interlocutory judgment entered on trial at special term.

J. M. Bowers, for app’lt; L. J. Morrison, for resp’t.

The principal ground of the appeal in this case seems to be based upon the claim that there was no evidence to sustain the direction for judgment in the interlocutory decree, the , latter being in contradiction to the findings. Upon an examination of the record we can see no support for this claim. The court has found the contract between the parties, has found what, was done under this contract, and his conclusions of law have fixed the. rights of the parties in accordance with these findings.

The claim of the plaintiff seems to be that because the defendant has in his judgment failed to make the contributions to the-joint adventure which in law he was bound to do, that therefore the plaintiff has a right to all the proceeds of the adventure.

We are not aware- of any rule of law which imposed such a penalty upon a party failing to comply-with all the requirements-of an agreement involving a joint adventure. In the case of a copartnership the mere failure to contribute the capital agreed to be paid in by one of the parties does not deprive him of the right, to participate in the profits of the business if it is carried on even by the capital of his copartner.

The failure to contribute such capital undoubtedly gives a right. to the copartner to terminate the copartnership. But he may not. carry on the business and avail himself of the services of the partner failing to contribute, and then claim all the profits arising because of such failure to contribute.

In the case at bar the facts disclose a joint adventure between the parties to this action. The defendant contributed certain services, and made certain expenditures, and the plaintiff contributed the capital by which the adventure was to be carried on to a successful termination.

It is true that the defendant-refused to contribute any part of the-capital required to carry on the enterprise, basing his claim upon a denial of any obligation so to contribute. But this refusal in noway prevented him from participating in the profits which might, arise from the successful termination of the joint adventure. The only right which such refusal, if unjustifiable, conferred upon, the other party was to refuse to go on with the adventure, and to terminate the relations under the agreement between them; but the plaintiff having availed himself of the services of the defendant.

p. 693

in the procuring of the contracts which formed the subject-matter of the joint adventure, he cannot now, because of his failure to contribute his proportion of the capital required, deprive the defendant of all the profits realized upon the joint adventure.

We think, therefore, that the judgment was right and should be affirmed, with costs.

Yah Bruht, P. J., and O’Brieh, J., concur.