13 N.Y.S. 388 | N.Y. Sup. Ct. | 1891
The principal object of this action was to settle the accounts of a partnership previously existing between the plaintiff and the defendants. It was formed by a written agreement made on the 31st of December, 1888, and to continue to and terminate on the 31st of December, 1890, with the privilege, however, to end the partnership on the last day of December, 1889. In the settlement of the affairs of the partners the plaintiff was charged with the sum of $1,742.77, besides interest, for the expenses which were paid for the services of an assistant in the business during the period of his illness and inability to take charge of and manage the part of it which had been assigned to him. He was the party of the second part in the agreement; and by the fifth subdivision of the articles it was covenanted that “the said parties of the second and third parts do bind themselves to give their entire time and attention to the business of the said copartnership, the party of the third part agreeing to attend to all the business upon the Hew York Stock Exchange, and the party of the second part agreeing to give his time and attention to the office business.” And it appeared by the evidence in the case that the plaintiff from the last of October, 1889, until the close of the year failed to perform the duties in the business which had been in this manner assigned to him. This failure was caused by his personal illness, rendering him incapable of giving his efforts and attention to the business for most of this interval of time; and during that period another person was employed by the other two partners who performed the services which were within the scope of the plaintiff’s obligation. He was charged in the manner- already stated with the amounts paid to that person, and it is to review the legality of that charge that this appeal has been taken from the judgment. To maintain the appeal the legal principle has been referred to which has frequently been applied to absolve persons from the performance of their contracts for the rendition of their services when that has been prevented by illness. As a legal proposition this principle has become very well settled in the law, but it has been applied only so far as to relievo