Muench v. Globe Fire Insurance — 59 N.Y. St. Rep. 247

Majority

p. 247

Ludwig T. Muench, App’lt, v. The Globe Fire Insurance Company, Resp’t.

(New York Common Pleas, General Term,

Filed May 7, 1894.)

Headnote

I. Contbact—Joint.

An obligation, undertaken by, or a right given to, two or more persons, without words of severance, is a joint obligation or right.

8. Same—Defense.

In an action against an insurance company by a person, who was employed as an adjuster by several companies, partial payments made by them are available to the defendant.

Appeal by the plaintiff from a judgment of the district court in the city of New York for the" first judicial district, rendered by the justice thereof, without a jury in favor of the defendant. The nature of the action and the material facts are sufficiently stated in the opinion.

This action was brought by the plaintiff to recover from the defendant, the sum of twenty-four dollars and thirty-five cents claimed to be its proportionate share of $2,500, the alleged value of services rendered by the plaintiff to the defendant and other companies in the capacity of appraiser. The answer was a general denial; denial of the value of the services; neglect and improper conduct of the plaintiff in his duties; and payment. The undisputed facts appearing from the evidence are, that a fire occurred in the establishment of one Henry Siede, a furrier; that he made a claim against the defendant and other fire insurance companies for loss by fire; that being unable to agree upon the amount of loss an agreement was made to submit the matters in difference to appraisers, one to be appointed by the insured and one by the companies, the two so appointed to name an umpire ; that one John Howley who was chairman of the Committee of Adjusters, and who was acting on behalf of all the companies selected the plaintiff to act as their appraiser; that no agreement as to the amount of his compensation was made; and that the plaintiff was engaged in the work about twelve days. At the trial there was a sharp conflict of evidence as to the value of the service rendered by the plaintiff. The justice evidently adopted the defendants’ valuation, and we see no reason for disturbing his finding simply because there is a conflict of evidence, in the absence of the elements justifying a review of the facts. Lynes v. Hickey, 4 Misc. R. 522; 54 St. Rep. 120 ; 24 N. Y. Supp. 731 ; Weiss v. Strauss, 39 St. Rep. 78 ; 14 N. Y. Supp. 776 .

The parties litigant by stipulation in writing agreed, that the amount actually paid to the plaintiff by the several insurance companies aggregated $688.31. The justice in rendering judgment in favor of the defendant expressed the opinion “ that the plaintiff has been fully paid for all services rendered under the joint agreement by the several insurance companies.”

The plaintiff contends that the agreement under which the services were rendered was and is several and not joint. The

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authorities, however, do not favor this contention. “ Whenever an obligation is undertaken by two or more, or a right given to two or more,.it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for this-purpose; but, on the other hand, there should be words of severance, in order to produce a several responsibility or a several right.” 1 Parson on Contract (4th Ed.) p. 11. “It may be doubted,” observes the learned writer, “ whether anything less than express words can raise a liability which shall be at once a joint and a several liability.” (Id. p. 12). Again at page 14, he states what is undoubtedly the law of the case, in the following language : “ In general, all contracts, whether express or implied and resulting from the operation or construction of law, are joint, where the interest in them of the parties for whose benefit they are created, is joint, and separate where that interest is separate. But the interest which is thus important as a criterion, is an interest in the contract, and not in any sum of money, or other benefit, to-be received from it. It is a strictly legal and technical interest, - created by the contract, and does not depend upon the condition or state of the parties aside from the contract.” Addison, says: “If there be a joint retainer and employment of another by divers persons to do one thing for .the benefit of all, they have a joint legal interest in the fulfillment of the contract, by the party employed, although they may have several beneficial interests, and be possessed of separate shares, in the subject - matter of the contract but if there be a separate retainer by each, in respect of the- . separate share of each, then they have separate inteiests in the fulfillment of the contract.” Addison on Contracts (Am. Ed. 1888) p. 74. “In implied contracts and promises, if the con.-idt-ration moves from several persons jointly, the law raises a corresponding implied promise in favor of all, in which all are jointly interested; but if there be several separate considerations moving from the parties separately and individually, the law implies a separate promise in favor of each, and their interests are separate.” (Id. p. 76.) “ When there are a number of persons named as con- , tractors they will be deemed joint contractors unless it. is otherwise expressed in the contract." Cowen’s Treatise, § 752. The record is barren of any evidence of an agreement | creating a separate charge, the obligation of the insurance companies to pay the plaintiff, must therefore be presumed to be joint. It follows-that the partial payments made by the several companies to the plaintiff are available to the defendant, Snow v. Chandler, 84 Am. Dec. 140 , and as the justice has found, that these partial payments amounted in the aggregate to a sum which fully paid the plaintiff for all the services rendered by him, the plea,of payment was satisfactorily established. No error appearing in the record the-judgment should be affirmed with costs.

Bischoff, P. J. concurs.