12 Wend. 386 | N.Y. Sup. Ct. | 1834
By the Court,
The principal qnestion in this case is, whether the plaintiff can recover under the common money counts. The original contract between the parties was special, and the defendant contends ought to have been specially declared on; and such appears to have been the opinion of this court when the case was formerly before it. 3 Wendell, 269. The distinction between an executed and an executory contract, does not appear to have been on that occasion sufficiently considered. As long as a special contract remains in force, neither performed nor rescinded, no recovery can be had under the general counts for any service performed under it; the action must be upon the contract itself. 14 Johns. R. 326. 19 id. 205. But where the contract has been fully performed, and nothing remains to be done but the payment of money, the common courts are all that it is ne
The action may be considered as either brought for this balance, or for the original advance made by the plaintiff to the defendant for his share of the cotton, and which advance was to be repaid at the termination and close of the adventure. In either point of view, I think the common counts, upon the principles and authorities referred to, are all that the plaintiff’s case required.
This was not a partnership transaction, as between the plaintiff and defendant; however it might be as between them and third persons. It was a mode agreed upon, by which the defendant sold absolutely to the plaintiff one half of his cotton, and obtained an advance from him to the full value of the other half. The cotton was to be consigned by the plaintiff to his correspondents at Havre, to be disposed of by them» and the proceeds to be remittdd to the plaintiff, out of the defendant’s share of which the plaintiff was to pay himself for his advances, if it proved sufficient. It was a special mode of payment agreed upon between the parties. Bach of the parties had his own particular views and expectations of advantage from the arrangement. But I am persuaded it would be doing great violence to their intention, to hold them to have been partners in the transaction, and to attach to it all the consequences of that relation. The case of Hesketh v. Blanchard, 4 East, 144, already referred to, has a strong bearing on this point; vide also Venning v. Leckie, 13 East, 6.
The account of sales received by the plaintiff from the consignees was properly admitted in evidence. They were the common agents of the parties, agreed upon at the commencement of the adventure.
New trial denied.