Opinion
July, 1905.
Augustus N. Hand, for the appellant.
Richard F. Goldsborough, for the respondent.
If the decision itself. could be sustained the interlocutory judgment might be modified to conform thereto by eliminating the unauthorized provisions with reference to a sale of the stock and an adjustment of the personal expenses between the plaintiff and Jones and the dual award of an extra allowance and by adding a provision that the promotion expenses payable under the agreement of November 8, 1901, out of the stock that was to be issued to Jones and McCormick should also be deducted before division, and, as modified, affirmed. We are of opinion, however, that the decision itself is not sustained by the evidence, at least in so far as it is found and adjudged that the defendant McCormick had no interest in the contract to which he was a party as a member of the firm of Jones McCormick, or in the promotion fees received for the services rendered therein, consisting of the stock in question. Assuming that the court was authorized in finding that the plaintiff, by virtue of his agreement with the defendant Jones, was entitled to an accounting for this stock and owned a half interest therein, subject to deduction before division of the personal expenses of the defendant Jones and himself, still the undisputed evidence shows that the other half interest was owned by the defendants Jones and McCormick as partners. In their answer the defendants Jones and McCormick united in claiming that they owned all of the stock, the fruits of the promotion, as copartners. The contract which resulted in the payment of this stock by the consolidated company was made in their names as copartners. The evidence shows that both rendered services in the matter. Their claim in their answer, their attitude on the trial, as disclosed by the record, and all of the evidence, except some declarations claimed to have been made by the defendant Jones, but denied by him, are consistent with their being interested as partners. At most they merely claim more than they are entitled to — all when their interest is only half. It is quite likely that the learned court did not intend to determine finally the rights of Jones and McCormick as between themselves, as indicated by a clause in one of the findings of fact that the defendant McCormick had no interest in the contract between the plaintiff and the defendant Jones, or in the proceeds thereof, "unless in the interest of defendant Jones therein subsequent to December, 1901." This was based upon evidence indicating that down to that time McCormick had asserted no interest, and the defendant Jones had declared that McCormick had no interest notwithstanding the contract in the firm name. It was, of course, proper to refrain from taking an accounting as between the defendants Jones and McCormick, but it should have been adjudged that the interest that they or either of them had, whatever it was, whether the half or the whole promotion fees, belonged to them as partners. It is difficult to comprehend why findings inconsistent with the claim and evidence of these defendants and quite immaterial to the plaintiff's interests should have been insisted upon. If, as the plaintiff claims, the contract which Jones negotiated with him was that he was to receive one-half of the stock and bonds received as promotion fees, it was immaterial to the plaintiff whether the contract was made with Jones individually or with Jones representing his firm; and it was immaterial to the plaintiff whether Jones individually should receive the other half or whether the firm of Jones McCormick should receive it. The plaintiff, however, has succeeded in obtaining an erroneous decision which might bar McCormick's right to share in the stocks or moneys received by Jones, which the latter is to be permitted to retain. We intimated upon the former appeal involving the injunction order that the plaintiff might be able to recover either upon the theory that Jones was acting individually or representing his firm. ( Boice v. Jones, 86 App. Div. 613.) Jones concedes that he made a contract with the plaintiff, but claims that while the plaintiff was informed that both the defendant McCormick and another were interested with him in the consolidation, the contract was made by himself only and it differed materially from that testified to by the plaintiff and upon which the recovery has been had. Since, however, the defendants Jones and McCormick maintain that their rights were as indicated in the agreement of November eighth, namely, that they, as partners, were interested in the promotion fees, and since that agreement, according to the plaintiff's testimony, was largely the result of his efforts, acting pursuant to his contract with the defendant Jones, and his future services in furtherance of the consolidation were rendered with full knowledge of his claim on the part of both Jones and McCormick, there can be no doubt but that the original contract negotiated by Jones, if to the effect claimed by the plaintiff, would be binding upon the firm. The error already pointed out, therefore, requires a new trial.
It follows that the interlocutory judgment should be reversed and the motion for a new trial granted, with costs to appellant to abide the event.
PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Interlocutory judgment reversed, new trial ordered, costs to appellant to abide event.