27 N.Y.S. 34 | N.Y. Sup. Ct. | 1894
The allegations of the complaint were not put in by answer, and it follows that the court rightly directed a verdict in favor of plaintiff, if it be true that defendant had failed, when he rested his case, to establish his counterclaim. No motion was made to dismiss the answer on the ground that it did not properly allege a counterclaim, and the evidence presented by the defendant to establish it was received without a single objection on the part of the plaintiff. Whether, in view of the fact that none of the allegations of the complaint were put in issue by the answer, some portions of the evidence might have been objected to and excluded, we do not determine. No occasion is presented for a consideration of that question. We are only to inquire, in view of the manner in which the trial was conducted by both parties, whether, at the close of defendant’s testimony,- he had so far established the counterclaim alleged in his answer, or some portion of it, as should have led the court to have denied the motion to dismiss. On this appeal we must, in disposing of that question, deem aH contested facts as established in favor of the appellant, and the most favorable inferences to be drawn from the evidence must be assumed in his favor. Galvin v. Mayor, etc., 112 N. Y. 223, 19 N. E. 675. The defendant testified (and in such respect he was supported by the witness Martella, who acted as the interpreter in the
It was urged on the motion to dismiss the counterclaim, and again here, that the agreement was without consideration. This contention is without force. The promise of the defendant to give the plaintiff the exclusive privilege of furnishing laborers at $1.50 per day on the work named, and all other work where he should have the privilege of supplying labor, was the price for which the promise of the plaintiff was bought to pay defendant $50 a month for each 100 men so employed. The consideration was executory, the counter promise, and not performance, constituting the consideration.
'And, the contract being founded on a good consideration, there remained for the defendant to show substantial performance on his part as a basis for the recovery of any sum claimed, or at least substantial performance of everything he had promised to do which the plaintiff had not waived. Now, the agreement represents the parties as having in mind a desire and intention to include within it (1) provisions relating to all the laborers to be employed on section 2 of “Water Extension on Long Island for the. Oity of Brooklyn ;” (2) all labor to be employed on any other work for which defendant should obtain the right to furnish laborers. While the specific work which was first made the subject of agreement was probably the inducing cause of the making of the contract, and not unlikely may have been regarded by both parties as of more moment than the other, still, the other provision was substantial, and, although it occupies but a few printed lines, the provisions of the clause preceding it are so incorporated into and made a part of it that it must be treated as if written substantially in these words:
“Now, in consideration of the premises, it is agreed between the parties that Braceo shall have the exclusive right to supply all the laborers needed on any work for which Tighe shall have the privilege of supplying labor, and shall have the sole and exclusive right to board and lodge such laborers. * * * And it is agreed that Braceo shall supply good and able-bodied men, and to the number required by the contractors, at the agreed wages of $1.50 per day; that said Braceo shall pay to the said Tighe, every month, the sum of $50 for each one hundred men so employed, which shall be in full for all his interest in supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Braceo alone.”
Now, it may well be that these two subjects of agreement are so far interdependent that a refusal to perform either would absolve the other party from any obligation to pay for that which had been performed and accepted without knowledge on the part of the accepter of the inability of the other contractor to make full per