9 Bosw. 163 | The Superior Court of New York City | 1862
The defendant’s objection of want of proper parties, is confined to the original contract for building and putting up the machinery in question, and the •additional work and materials furnished by the plaintiffs’ •firm, and does not extend to any subsequent valid undertakings of his. The plaintiffs’reply sets' up, apparently, four defenses to. the claim for damages in the answer, besides a general denial that any damages arose from the cause assigned, to wit: 1st. A cotemporaneous agreement •to extend the time, from the impossibility of completing the work within that fixed therefor. ■ 2d: A subsequent agreement to do so in consideration of extra work to be done by the plaintiffs’ firm. 3d. An acceptance, by the •defendant, of the engines and boilers, when completed, as-.a full performance of the contract; and, lastly, the inclu
The Referee has not found, distinctly, with whom the plaintiffs’ firm agreed to do the work in question, nor to whom they gave the exclusive credit; he has, however, found that the defendant employed such firm to do such work, and that the contract in writing, although purporting to have other persons parties thereto, who are named therein, was signed only by the members of the plaintiffs’ firm and the defendant; also, that by a simultaneous agreement, a piece of land was agreed to be taken by the plaintiffs’ firm as part of the price of such work, under a conveyance from the defendant;, and that, in all subsequent transactions, the plaintiffs’ firm dealt wholly with the defendant, and neither dealt with, nor received communications from the persons named in the answer. That the defendant paid part of the contract price by a conveyance of the land agreed upon, and obtained .a credit op, the payment of other installments, by the delivery of his promissory notes therefor, at five and six months without interest ; while he charged his associates with the land and promissory notes as cash paid, and drew interest on the latter, in a settlement with them.
Moreover, there is direct testimony that the defendant is the only person with whom the plaintiffs’ firm dealt in such contract; the land conveyed belonged to a bank, in which the defendant had a large interest and. of which he was president, and in which there is no "proof that any of his associates had any interest; he claimed to give his promissory notes without interest, because the contract was not completed in time. Receipts for such notes are annexed to notices of non-waiver, signed “ George Law & Co;” which speak of “my rights and claims * * under your contract with George Law, &c.”- Such receipts are in favor of the defendant alone, there being no evidence that any such firm as George Law & Co. ever existed. ..The
. It would be very difficult to say, from the testimony in this case, if the contract was not made exclusively with the defendant, with whom it was made. There is no evidence of any authority given to him to bind any person thereby, except the parties to the original assignment in trust, unless the mere joint ownership by himself, and the parties named in the answer, of the hulls of the vessels, entitled him to incur a debt of $309,000 for machinery to put on board of them, so as to convert them into steamboats. The written contract was signed by the defendant alone, and although, possibly by its form, it may have given all the persons named in it a right of action against the plaintiffs’ firm for a breach of their obligations contained in it, it gave none to them against any one but the defendant. If such contract can be laid aside, and we are at liberty to go into an inquiry as to the persons for whose benefit and by whose authority it was made, Ave shall find, unless we go back to the assignment in trust, that the only authority of the defendant consists of his joint ownership of such hulls. There was no agreement of any kind proved between the defendant, Roberts, Cros- , well, and the two Wetmores, as between themselves, that they would complete the vessels as steamboats for any purpose, although they jointly agreed with others that they would do so, as they also did with others, to build the vessels. If they had so agreed, as between themselves for th.e purpose even of carrying out the contract with Sloo, there might have been such a joint enterprise, and to such extent as to have entitled any of the partners in it to bind the others by á contract to do what was necessary to complete it or carry it on. (Staats v. Howlett, 4 Denio, 559.) If the joint enterprise, (to which the "completion of
But it is said that the joint ownership of the hulls entitled the defendant to equip them as steamboats with proper machinery. I have not been able to find any authority which goes so far as to hold that the joint owners of a hull, which has never been used for a steamboat, are authorized as agents for each other to make contracts to convert it into one, by building machinery and putting it on board, however fitted it may be for such use, or unfit for any other. They are but tenants in common of it, not partners, (Nicoll v. Mumford, 4 Johns. Ch., 522,) and whatever may be their rights as such, to prevent it from being destroyed in the form in which it has been completed, for want of repair, they do not extend to so material and expensive an alteration of its character as placing steam engines on board at the expense of all, without the express agreement between the owners, which would make it a joint enterprise.
The findings of the Beferee, however, and the evidence already alluded to, justify us in arriving at the conclusion as a fact, that exclusive credit was given to the defendant by the plaintiffs’ firm in all the contracts between them. One of that firm testifies that “ he supposed those men- tioned in the contract were interested in the engines, but “ as Mr. Law only signed it, he was the only party with “ whom ive ivere dealing, we considered him good enough.”
There is no need of authority to show that exclusive credit may be given even to one of several partners, so as to make him individually liable, as readily as though he had indorsed with his own name a promissory note of the firm, or otherwise guaranteed their responsibility; and
Even, however, if no such fact appeared in the case, upon the first written contract, the defendant made himself liable by signing it; there was sufficient consideration for the obligation, and there was no proof that he did not intend to be bound until others signed it, (Parker v. Bradley, 2 Hill, 584,) nor did he sign it, nor was he described in it, in any representative capacity. (Lincoln v. Crandell, 21 Wend., 101.) The rule of law, that his signing it does not prevent the plaintiffs from reaching his principals, where the contract is by parol, (Chitty on Cont., 249; 1 Pars. on Cont., 162; 3 Kent’s Com., [4th ed.,] 41-44,) will not the less make him liable, in such a case, upon it as surety, as much as though he had indorsed their notes.
I am by no means satisfied that the defendant has not waived his objection of non-joinder of parties, by setting up a' counterclaim in favor of the same parties against the plaintiffs. Such a claim would clearly be inadmissible, if the claim of the plaintiffs were against the defendant alone; and yet, if both the objection and counterclaim are to prevail, the defendant can avail himself of an action which he claims cannot be maintained, in order to recover a claim which could only be sued for in an action, by those whose absence as parties to the suit, he alleges makes it defective. The Code does not provide
From the testimony of a clerk of the trustees of the vessels in question, under the assignment from Sloo, it appeared that the defendant was paid by them a certain sum, ($25,588.99,) charged by him in an account, to reimburse him for that sum, as due to the plaintiffs’ firm. At the time, as such witness states, “ It was stated by the “ defendant that that sum was a disputed item^between “ himself and the contractors for the engines of the Ohio “ and Georgia; * * when the matter was settled a “ voucher was to be produced ” from the plaintiffs’ firm; “ he was to procure it,” Another witness (Kirby) testifies, that these vessels, with another, were subsequently transr ferred to another company, to the extent of the interest of the defendant and others therein, for a sum which included the disbursements of the defendant for the construction of the engines and extra work, according to his account rendered to the trustees, he being then their constructing agent. That in June, 1850, during the examination of such accounts, the defendant said: “ that inas- “ much as the construction- had all been paid for, except ■ “ as to that one item, the account had letter le closed, so
The defendant being individually liable for the claim of the plaintiffs against him, the next question which arises is whether he had any claim for damages which could be deducted or set off. The work, coneededly, was not finished within the time agreed upon, and if nothing was done to waive the claim for damages therefor, it still remains. A difficulty might arise as to the right to set it off, if the plaintiffs’ claim be against the defendant alone on an individual liability. It might be available as a recoupment in mitigation of damages, but the answer does not claim it as such. (Nichols v. Dusenhury, 2 Comst.,
The Beferee properly disregarded the evidence offered to vary the written contract as to the time of completing the work provided for in it, although the defendant claimed the right to reject such written contract, and to hold the plaintiffs to some other contract made by him on behalf of the owners of the vessel; and if the plaintiffs yielded to the proposition of the defendant to deceive the United States Government, by the insertion of a time within which the work could not be done, they would be justly punished by being made to pay damages for lending themselves to the deception, as the defendant would, for thq same reason, have been, by being compelled to pay
The facts that plaintiffs and defendant agreed, originally, that the time was fixed in the contract for a different purpose; that the defendant superintended the work while it was going on, and lent the plaintiffs’ firm his notes for $7,500, to be applied on account of the moneys to grow dne under the contract, without objection to the non-completion, on the 29th of June, 1849, over a month after the machinery for one vessel was to have been finished; that a variety of misfortunes interfered to prevent a completion of the work in time; that the plaintiffs worked diligently to complete it; that there is no evidence of the communication by the defendant of such claim for damages to the other trustees; that the defendant took a receipt for his notes, without interest, on a notice of a claim of damages,— although no legal excuse for the delay, each tend to diminish any improbability of the defendant’s having waived a claim for damages, or accepted such credit on the notes, and other deductions from the bills, as a sufficient compensation. The liquidation of such damages and its merger in the account stated between the plaintiffs’ firm and the defendant, after the work was done, and in March or February, 1850, mainly rests upon the testimony of one witness, (Mr. Breasted,) who now has no interest in the action, which is only opposed by that of the defendant. From that testimony it appears that the defendant, on the rendition of the accounts, stated to the plaintiffs that they were behind hand in the work, and he was not going to allow them all the bill; that he was not going to pay wharfage during the delay, and directed them to take out the items complained of and he would settle the bill; those items were taken out as a compromise of the matter, and to close the thing up a new bill was made out, and be said “ he would pay the hills.” The witness testified “ that this was a general settlement and compromise of every thing.” This is corroborated, as to the promise to pay, by the testimony of another witness, (Quintard,) who testifies that
The defendant objects that the Referee erred by allowing the amendment to the complaint containing a new cause of action. By § 272 of the Code, he has the same power as the Court on a trial; and that, by % 173, extends to inserting allegations material to the case, as well as conforming the pleading to facts proved. In this case the substance of the amendment was already in issue,.being contained in the original reply to the defendant’s defense qr set-off of a claim for damages. (Hall v. Gould, 3 Kern., 127.) What was already in the complaint was necessarily part of the amendment, which the court, on application, would undoubtedly have permitted to be added, as the only effect and object of the amendment was to get rid of a technical objection of want of parties. Perhaps a trial is the best place to investigate the good faith of an amendment.
Many facts found in this case by the Referee, being immaterial to the issue or the result, may be rejected without injury, particularly where, as in this case, he states those upon which he exclusively relies to justity his final conclusions of law that the plaintiff is" entitled to recover; he puts that solely upon the two accountings which he finds to have taken place, as matter of fact, and that, as matter of law, they excluded the objections of the non-joinder of parties and the claim for damages.
Several exceptions were taken to the admission of testimony, claimed to have been improperly admitted, none of which are tenable. Proof of the non-payment of the $30,000, at the date of the contract, was relevant for several purposes. A receipt for the amount was produced by the defendant; no charge was made by him for it in his accounts rendered to the trustees, and without an explanation there might be some embarrassment as to the amounts claimed. I do not find in the evidence any attempt to throw any imputation upon the defendant, of an improper motive for such fictitious addition, except that to which the simple fact gives rise; although the defendant did offer evidence casting the imputation of primary guilt on the plaintiffs, without removing his own complicity in it. Attempts to introduce improper evidence, which were defeated by its exclusion, could hardly affect the mind of the Referee unfavorably to the defendant. The fact that the other trustees were ignorant that the defendant obtained credit on the installments by giving his notes, or conveyed land instead of paying money, was important to show that he considered the contract entirely his own, to deal with as he thought proper, and that the arrangement of paying
There being, therefore, no errors of law in the decision of the Referee, and there being sufficient evidence to jus-tify the facts expressly found by him, and all other facts •necessary to sustain the judgment, it must be affirmed with costs:
Bosworth, Ch. J., and Morcrief, J., agreed in affirming the judgment.