66 Barb. 73 | N.Y. Sup. Ct. | 1867
The first question to be considered in this case is, whether on the facts proved the plaintiff alone can maintain the action? The contract for the transportation of the railroad iron was made by Farwell on behalf of the firm of Paul, Farwell & Co., that owned the iron to which the contract related. The firm consisted of Paul, Estabrook, Farwell and Potter. Potter transferred his interest in the claim against the defendant to Farwell, who thereby became owner of it. Estabrook assigned to the plaintiff all his interest in the contract for building the railroad, and on which the iron was to be used. This transfer vested in the plaintiff, not only the assignor’s interest in the contract for constructing the road, but in everything pertaining to the work. Estabrook’s connection with and interest in the enterprise was, as I understand Far-well, absolutely ended and determined, leaving in him no interest in the property of the firm of which he had theretofore been a member. Paul, the other partner, died before suit brought, and the right of action survived to the plaintiff, and the omission to describe himself as survivor cannot affect the plaintiff’s right to recover in this suit.
The next question is, was Wilkie a necessary party defendant? .The answer avers that he was a partner with Davis, and that the firm was doing business in New York in the name of Davis,'by whom the contract alleged in this Case was made. The general rule is that such a partner is a necessary party to a suit upon a contract entered into by his firm. But by the partnership articles it appears that each partner was bound to make all contracts relating to the copartnership business in his own name, so as to secure the other partner against liability as such to third persons, upon contracts made by the several partners; and that the partnership should exist between themselves only for the purpose of the division of the profits and losses. Such an agree
Having disposed of these formal objections to the right of the plaintiff to recover, we come to the question whether there was in fact and in law a contract entered into between the plaintiff and the defendant for the carriage' of the iron. The plaintiff and Howland both testify that the defendant was requested to and did submit to-them an offer in writing containing the terms upon which he would convey the iron. These terms were to carry from Brooklyn to Saginaw at $4.50 per ton, 550
It was a condition precedent to the obligation to carry, that the plaintiff should deliver, or cause to be delivered to the defendant, the iron to be carried. Was this condition performed ? The mere delivery of an order on the warehouseman for the iron was not such delivery as was contemplated by the contract. It was absolutely essential that the iron should be actually delivered if called for, or actually ready for delivery. An order on the warehouseman would be a sufficient delivery, provided the warehouseman would deliver when called upon; but if he should refuse to deliver, it would be impossible for the carrier to perform his contract. Crook was the vendor of the iron, Wetmore had it under his control, and it was on the 18th of October, the day the order was given to the defendant, in the ship Cutting, then, as I 'infer, in the harbor of Brooklyn. The order was on Wetmore. He testifies that the iron was in the warehouse on the 35th of October, and had
If it were true that the defendant had called for iron as early as the 19th of October, and it had not been delivered, and that none was delivered until the 23d, there would have been a failure to perform the condition precedent, which would have justified the defendant' in abandoning the contract. But to do that, and to entitle himself to carry upon an implied promise to pay him what it was worth, he should have disaffirmed the contract and refused to carry Upon it; then, if the plaintiff assented to his taking the iron, he would have been entitled to recover what his services were reasonably worth. But the jury found that he did not repudiate the contract, but on the contrary, by his omission to disaffirm, he must be held to have received the property and to have carried the same under it.
As the plaintiff did not insist upon recovering damages for not delivering the property in the fall of 1860, it does not. become necessary to inquire whether, on the case made by himself, he was entitled to recover such damages. However that may be, it is quite clear that having received and conveyed the property under the contract, he could not demand for his services more than the contract price. He did demand more, and refused to deliver the property until the illegal claim was satisfied. The plaintiff paid such excess under protest, and for the amount thus paid he is entitled to recover.
Was the plaintiff entitled to recover for his time and expenses in searching for the iron, and getting it sent forward, and in settling with Wilkie % If the -plaintiff was believed, he had the right to expect that the iron
In Briggs v. Dwight, (17 Wend. 71,) the plaintiff sued to recover damages for not delivering to him possession of certain premises which the defendant let and leased to the plaintiff for one year. It was proved that the plaintiff removed his family to the premises leased, thereby increasing expense, but the defendant refused to allow the plaintiff to enter. These expenses the plaintiff sought to recover as part of his damages. The Court of Common Pleas, in which the action was tried, held that the plaintiff was entitled to recover these expenses. On error, the judgment was affirmed. Cowen, J., says: “The measure of damages was certainly not confined to the difference in rent.” He held the expenses recoverable under the allegation of general damages- in the declaration. That expenses, such as are claimed in this case, are recoverable as damages in an action for breach of the contiact, see Parmalee v. Wilks, 22 Barb. 539; Giles v. O’ Toole, 4 Barb. 261; Durkee v. Mott, 8 id. 423; Lawrence v. Wardwell, 6 id. 423; Black v. Baxendale, 1 Welsh. Hurls. & Gord. 410. This case is directly in point that the expenses are recoverable as damages in such an action as this. ( Williams v. Vanderbilt, 29 Barb. 491.)
Was there an accord and satisfaction-as to the plaintiff’s claim for damages between him and the defendant, or between him and Wilkie acting as agent for, or partner of, the defendant % The charge of the court as to the effect of a settlement with Wilkie, was not excepted to, and hence no question can be raised here as to it. The defendant’s counsel requested the court to charge that if there was a settlement made at Buffalo with Wilkie, as sworn to by him, it was as much a settlement with the defendant as if made with him personally, and the plaintiff was not entitled to recover. The court refused so to charge, on the ground that he had instructed the
The defendant’s counsel further requested the court to charge that the question between the plaintiff and Wilkie was in regard to the.freight or charges from New York to Buffalo by rail, and the charges and statement of account furnished by Wilkie was of the railroad charges; if, therefore, there was a settlement at all, it was of the claim of the defendant for freight, and whether made by Wilkie as partner, agent or consignee, it was a settlement in all respects as if made by the defendant. This request was refused, and the defendant’s counsel excepted. Wilkie swears that in order to induce the plaintiff to settle all the difficulties relating to freight and charges on the iron, he deducted from the amount of his bill $151.99. This the plaintiff denies, and the jury must have believed the plaintiff. Believing him, the whole ground-work of the accord and satisfaction is swept away, and the plaintiff is left with his claim in full force. But if this was not so, the jury might very well have found that the claim against the defendant was not settled with Wilkie. The plaintiff says he did not know that Wilkie and the defendant were partners; that Wilkie told him he held the property as consignee, subject to charges, and would not relinquish the property until they were paid. The charges to which the property was thus subject were, canal freight' at $4.50 per ton, as to part, and $5 per ton as to another part, railroad freight at $6 per ton, insurance, and Wilkie’s commissions. The railroad freight was unquestionably
The defendant’s counsel insisted, on the trial, and insisted on the argument of the appeal, that it was proved there was $151 deducted by Wilkie from the charges; that Wilkie so swore positively, and the plaintiff did not deny it. • This is a mistake. The plaintiff produced a statement of account of the charges on the iron, which corresponded exactly with the one produced by Wilkie, and he says he arranged for the payment of the bill just as it stands. This cannot be true, and yet the plaintiff have had the deduction claimed by Wilkie. It was for the jury to say which version of the transaction they would believe.
I have examined the other grounds upon which the defendant’s counsel relies to reverse the judgment, but I do not regard them of sufficient importance to require discussion. I am therefore of the opinion that the judgment should be affirmed.
Judgment affirmed.
Bacon, Foster, Mullin and Morgan, Justices.]