Bien v. Parsons — 72 N.Y. St. Rep. 789

Majority

p. 789

Julius Bien et al., Resp’ts, v. John D. Parsons, Impleaded etc., App’lt.

(New York City Court, General Term,

Filed January 28, 1896.)

Headnote

Evidence —Pabol.

Where the very nature of the work to be done requires that some one should furnish the contracter necessary information, and the contract fails to show whose duty it is to furnish such information, it is proper to admit oral evidence to establish that fact.

Appeal from a judgment in favor of plaintiffs.

George M. Wright, for app’lt, John D. Parsons; Franklin Bien, for resp’t; Walter L. McCoy, for def’t Thurlow Weed Barnes.

—I think that the contract (marked “Plaintiffs’ Exhibit A”) shows that Hall acted as the agent of the defendants in making it, because they approved of the same. The very nature of the work to be done required that some one should furnish the plaintiffs necessary information, or, as plaintiffs designate it, the “necessary material,” to construct a geological map of New York state, as required by said contract. As the contract failed to show whose duty it was to furnish such information, it was proper to admit oral evidence to establish that fact. It also' appears that the failure of the plaintiffs to finish their work within the time fixed was due to the failure of defendants’ agent to furnish the plaintiffs with the information which it was necessary for him to furnish, and was apparently no fault of the plaintiffs. The evidence shows that he never furnished such information, and for that reason they were not able to complete their contract, and thus were compelled to bring this action for damages caused them by reason of the violation of such contract by the defendants’ default.

As to the question of partnership raised by the answer of the defendant Barnes, I think the evidence submitted justifies the conclusion that he was a partner of the other defendants. The testimony of the defendant Parsons tending to prove such copartnership was admissible, because it corroborated the other testimony upon that question given in the plaintiffs’ behalf. Standing alone, it would, perhaps, not have been sufficient, but was a strong link in the chain of evidence submitted by plaintiffs to prove affirmatively, by a preponderance of evidence, that issue, as they were required to do under the pleadings. The testimony also shows that this action was commenced within six years after the cause of action herein accrued.

The whole record, I think, shows that the case was fairly and fully tried, and that the verdict was justified by the evidence, given to the jury; and we think no error was committed that should entitle the appellant to a new trial, and therefore the judgment is affirmed, with costs.