Yerby v. Kirkpatrick — 25 N.Y. Super. Ct. 227

Majority

p. 227

Joseph W. Yerby, plaintiff and appellant, vs. Joseph Kirkpatrick, defendant and respondent.

Headnote

A broker, having a quantity of merchandize for sale, for his principal, at a limited price, agreed with another person to pay him a portion of the profits on its sale, without specifying what portion. He subsequently agreed with a third person that the latter should sell the merchandize, and that they should divide whatever price was received over and above the sum fixed by the principal as such. ■

Sold 1. That the agreement between the broker and such first person was void for uncertainty in not specifying the portion of the profits to which the latter was to be entitled.

2. That such first person had such an intm-est in the subject matter of an action brought by such third person against the broker, to recover one half of the profits of the sale of such merchandize as to render him either a necessary or proper party to it.

(Before Barbour,, Monbm. and Garvin, JJ.)

Heard March 16, 1864;

decided April 30, 1864.

The action was brought to recover one half of the profits of sale of a large number of rifles. The plaintiff, having the rifles in hand, on sale, as a broker, agreed with the defendant, who was also a broker, that the latter should sell the rifles, and that they should divide the proceeds, over and above $16.50 each rifle, which was the price the owner was to receive for the rifles. The defendant sold the rifles, and received a profit of $11,495.

On the trial the plaintiff, upon his cross-examination, testified that there were parties behind him, who expected to get a portion of the profits; that there was an agreement to that effect, and that if the plaintiff should recover they would be entitled to a portion of the recovery. That he agreed with Mr. Sweet that he should have a portion- of the profits. That the amount Sweet was to have was not agreed upon nor stated. Upon-his re-direct examination, the plaintiff testified that Sweet told him he knew of a person who had some Enfield rifles for sale, and would introduce the plaintiff to such person, and did so ; and that it was simply understood that if they made any thing out of the transaction, Sweet would be com

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pensated ; that no proportion of the profits toas spolcen of, and ther.e was no amount named.

When the plaintiff rested, the judge dismissed the complaint, on the ground that Sweet was a party in interest, and a necessary party plaintiff in the action. The plaintiff excepted, and appealed from the judgment dismissing the complaint.

William Allen Butler, for the appellant.

W. C. Traphagan, for the respondent.

By the Court,

I think it is clear that the agreement made by the plaintiff with Sweet did not constitute them partners. There were none of the ingredients of a partnership, such as sharing in the losses as well as the profits ; contributing capital or skill, or personal services in lieu of capital, and the implied right to bind the partners by the acts of each. Nor was there any intention on either side that there should be a partnership. Sweet introduced the plaintiff to the owners of the rifles, and for that service the plaintiff agreed that if any thing was made out of the transaction, Sweet should have some share as a compensation.

The agreement did not create a partnership either as between Sweet and the plaintiff, or as between, them and third persons, the transaction being, I think, clearly susceptible of a different interpretation. It was a mere agreement to give Sweet a share of the profits, if any were made. (Story on Part. §§ 30, 47. Vanderburgh v. Hall, 20 Wend. 70 .)

Had Sweet such an interest in the subject matter of the action that he was either a necessary or proper party to it ?

There was no principle of agency applicable to this case. The plaintiff was in no sense the agent of Sweet, in the transaction with the defendant. The contract between the plaintiff and defendant was an entire contract, to which there were no other parties. Sweet was not a party to it, and could not have ■ enforced it, or any part of it. The plaintiff had the absolute right to enforce it, and the absolute right to receive

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one half of the profits from the defendant; and it cannot he pretended, I think, that sweet had any such right, either solely or in conjunction with the plaintiff.

In principle, this case is not unlike Cumings v. Morris, ( 3 Bosw. 560 .) The action was by an indorsee of promissory notes against the maker. Upon the transfer of the notes by Prime to the plaintiff, the latter gave his promise to transfer certain stock to Prime, which was never done ; the plaintiff testifying that Prime was to guaranty the notes to him, and that if they were not collected, the stock was to remain with and belong to the plaintiff. In other words, Prime was to be paid' for the notes with the money collected upon them. The court held that the plaintiff was the real party in interest. The late chief justice says, (p. 577 :) “A failure of the plaintiff to recover in this action might be as great, and possibly a greater loss to Sergeant (whom Prime represented) than to the plaintiff. But that feature only illustrates the extent to which a person, not a party to an action, may be interested in the event of it, notwithstanding it is prosecuted by the legal and equitable owner of the cause of action stated in the complaint." And in Hastings v. McKinley, (1 E. D. Smith, 273,) it is said that where the plaintiff has the whole legal interest, he is the real party in interest, and alone capable of suing.

A recovery by the plaintiff in this action would be a complete determination of all rights under the defendant’s contract, so far as he was or could be concerned. And that, perhaps, is the best test of who are the parties in interest under it. (Varnum v. Pearson, 2 Hilt. 16.) Sweet could not sue him, but would have to look to the plaintiff under another and an entirely independant contract.

There is another reason why Sweet was not a party in interest. His agreement, (if such it can be called,) with the plaintiff, was void for uncertainty. No portion of the profits was named or agreed upon, and it would be impossible for any court to regulate the recovery. Whether it should be one half of the profits, or one mill, the contract furnishes no means for determining. Besides, I do not find that there was any

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consideration to sustain the. promise to pay Sweet a portion of the profits, if any were realized.

We are of opinion that the learned judge erred in dismissing ■ the complaint; and that the judgment should be reversed, and a new trial granted, with costs to abide the evenh

Cases cited

Vanderburgh v. Hull & Bowne 20 Wend. 70 N.Y. Sup. Ct. p. 228
Cumings v. Morris 3 Bosw. 560 N.Y. Super. Ct. 1858-12-04 p. 229
Mills v. Pearson 2 Hilt. 16 N.Y.C.P. p. 229