82 N.Y.S. 432 | N.Y. App. Div. | 1903
The first question presented is whether the contract was joint or several, or joint and several on the part of either or both of the parties thereto. In form, manifestly, the contract is joint and joint only on the part of the vendors, and joint and joint only on the part of the purchasers. It appears, however, that the vendors were corporations engaged in business separately, and the purchasers were severally engaged in business as paving contractors, some in both the cities of Hew York and Brooklyn and some in only one. It is contended that the plaintiffs could not lawfully become partners in supplying paving stone to the defendants and that, consequently, they cannot jointly maintain an action upon the contract, but manifestly the undertaking was joint On the part of the plaintiffs, although in fact as between themselves each was to contribute, as near as practicable, an equal amount of the paving stone. There is nothing in the contract by which the purchaser could maintain an action against either of the plaintiffs separately for a failure to deliver the whole or any part of the paving blocks. There would be no basis for such a recovery. Consequently the contract is necessarily joint on the part of the plaintiffs. It may be that such a contract
The appellants also contend that the liability of the purchasers was several and not joint. In support of this contention it has been shown not only that the purchasers had theretofore had no partnership relations, but that thereafter they severally bid upon and obtained contracts for paving in New York and Brooklyn, and that the paving stone, delivered under this contract, was actually delivered to and used by the purchasers upon their respective individual contracts and paid for by them severally, except as to that part of the jmrchase price which has not been paid. These facts do not necessarily show a controlling practical construction of the contract by the parties. They are consistent with a joint liability on the part of the purchasers and such, we think, is the effect of the contract. It is evident that the purpose and object of the plaintiffs was to maintain a price for paving stone that would net them a reasonable profit. They had theretofore been competitors, but by this contract virtually ceased to be competitors as to all paving work in New York and Brooklyn during the period covered by it. It does not expressly appear, but the inference is plain, that they practically had a monopoly and control of the particular kind of paving blocks to which the contract relates. While it was not expressly covenanted that the companies would not sell similar paving blocks to other contractors in the cities of New York and Brooklyn, that apparently was the object and intention of the parties ; and thus the purchasers, in effect, obtained control of the paving to be done in New York and Brooklyn during the time specified with that kind of paving blocks, for it is provided that in addition to using the paving blocks in performance of their own contracts they are at liberty to sell to the cities should the municipal authorities undertake the work of paving without letting contracts therefor. We have not overlooked their testimony that they continued to be competitors in bidding upon paving work in these cities; but that is not controlling. The object of each of them in entering into this contract is plain.
Assuming the liability to be joint, the appellants contend that they have been discharged owing to dealings between the plaintiffs and Smith and Kelly, the other joint purchasers under the contract. Upon a former trial of the issues before a referee the plaintiffs recovered. These appellants then appealed and the judgment was reversed as to them on account of an overcharge, the defendants having been charged for the amount of paving stone that would have been used under a particular contract in paving the space occupied by the tracks of a street railroad, which space was not, in fact, repaved. (Booth Brothers v. Baird, 87 Hun, 452.) That
The contract being joint, any counterclaim properly established against the plaintiffs inures to the benefit of all defendants. (Booth v. Cleveland Mill Co., 74 N. Y. 15, 26; Clark v. Patton, 27 Ky. [4 J. J. Mar.] 33.) It is contended that the referee erroneously disallowed a counterclaim interposed by the defendant Hart for $2,592 for the expenses of handling, hauling and storing paving blocks delivered prematurely. The complete answer to this claim lies in the fact that the referee has found upon conflicting evidence that the paving stone was received and accepted without any agreement or understanding for compensation in this regard and the evidence is sufficient to sustain the finding. Another counterclaim ' which it is claimed was erroneously disallowed was for breaking and
The plaintiffs have recovered the sum of $8,739.75 and interest thereon from the 6th day of March, 1890, as demurrage on account of the alleged failure of the defendants to provide, within the time specified in the contract, dockage for vessels arriving -with cargoes of stone and facilities for removing the cargoes as rapidly as called for by the contract. The contract is silent on the question of demurrage. The plaintiffs were obligated under their shipping bills to pay demurrage upon certain terms and conditions; and it appears that the plaintiffs did pay demurrage in an amount nearly equal to that for which they have been allowed.. The cargoes were consigned to the plaintiffs and the purchasers were not parties to the shipping contracts. The liability of the purchasers is to be determined solely by their contract quoted in the statement of facts. The plaintiffs^ apparently for their own convenience, commenced shipping the stone into the harbor of Hew York before the purchasers obtained contracts and without any formal notice or request from the purchasers therefor. The purchasers were notified of the arrival of one or two vessels loaded with stone, but there is no evidence that any demurrage was charged on account of these vessels. There is evidence that the plaintiffs notified the purchasers of the arrival of other vessels; but it does not appear that the purchasers were notified of the arrival of any of the vessels for which demur-rage has been allowed. The plaintiffs were aware of the fact that the purchasers had not obtained contracts and were not ready to use the stone. The purchasers, it is true, did not formally refuse to accept
There is evidence tending to show that.the purchasers agreed to become responsible for the item of wharfage for which a recovery has been allowed.
The executrix of the deceased defendant Baird contends that the estate which she represents is not liable to the plaintiffs, inasmuch as it has not been shown that the surviving joint debtors are insolvent. This contention seems to be fully supported by the case of Potts v. Dounce (173 N. Y. 335).
It follows, therefore, that the judgment should be reversed as to the appellant Hart and a new trial granted, with costs to appellant to abide the event, unless the respondents shall within ten days stipulate to reduce the judgment by deducting the items allowed for demurrage and storage expenses, together with interest thereon, and, in the event of their so stipulating, the judgment is modified and affirmed as to Hart, without costs, and the judgment is reversed as to the appellant Bail’d as executrix and a new trial granted, with costs to appellant to abide the event.
Patterson, O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented as to reversal of Baird judgment.
Judgment reversed as to appellant Hart and new trial ordered,, unless respondents stipulate to reduce judgment as stated in opinion, in which event judgment as so modified affirmed, without costs ] judgment reversed as to appellant Baird and new trial ordered, with costs to appellant to abide event.