241 A.D. 155 | N.Y. App. Div. | 1934
The plaintiff, claiming to be a joint adventurer with the defendant under a written contract, demands judgment that the joint venture be dissolved; that an accounting be had and that the proceeds of the assets of the joint venture be divided between the parties according to their respective rights. The defendant appeals from the order which denied its motion to dismiss the complaint, contending that the agreement, annexed to the complaint, does not constitute the parties joint adventurers.
The contract recites that the defendant is engaged in the manufacture and sale of refined sugar and that the plaintiff is engaged
The complaint then alleges, in substance, that the plaintiff has earned commissions, which the defendant has refused to pay, on account of sales of sugar made by the plaintiff as the defendant’s selling agent and also, it would seem, on account of sales made by the defendant, on which, under the agreement, the plaintiff is entitled to commissions. For all these sales it is alleged that the defendant has refused to account. It has also refused to render any statement of its sales to the plaintiff or to permit the plaintiff to examine the defendant’s books.
The arrangement between the parties has none of the characteristics of a joint adventure. It is only the usual brokerage agreement on a commission basis, with the additional element that the principal receives an interest in the net profits of the broker’s business. There is no joint proprietary interest here in any partnership assets. There is no agreement to share losses as well as profits from which a fiduciary relationship could be implied. There is only the obligation by the defendant to pay commissions to the plaintiff and by the plaintiff to pay a share of its net profits to the defendant. This is insufficient to create a joint adventure. (Hutchinson v. Birdsong, 211 App. Div. 316; Mariner, Inc., v. Hughes, 235 id. 143; Byrne v. Blaker Advertising Agency, Inc., 239 id. 395.) The plaintiff has an adequate remedy by an action at law for any
The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted.
Finch, P. J., and Glennon, J., concur; Merrell and Townley, JJ., dissent.
Order reversed, with twenty dollars costs and disbursements, and motion granted.