Opinion
08-24-1895
OLDS v. REGAN et al.
Mr. Ten Eyck, for the motion. Alex. Grant opposed.
Bill by David E. Olds against Thomas E. Regan and others for an accounting. Heard on motion to dismiss. Granted.
Mr. Ten Eyck, for the motion.
Alex. Grant opposed.
EMERY, V. C. The bill in this case is filed by the complainant Olds, against Regan, a contractor (one of the defendants), for an account of the profits of several contracts for municipal improvements made by Regan, —one with the township of Montclair, several with the city of Newark, and one with the township of East Orange. As to all of the contracts except the one with East Orange, complainant alleges that he was employed by Regan to superintend the work under the contracts, on an agreement that he should receive 25 per cent. of the net profits of the contracts. On the Montclair contract he was also to receive a weekly allowance of $25 in addition. Complainant alleges that defendant refuses to come to an accounting with him for the profits of any of these contracts. Complainant also claims a lien on the moneys still due on the contracts from the different municipalities to Regan, and each of the municipalities of Montclair and Newark are made parties defendant.
The defendant Regan, in lieu of demurrer, moves to dismiss the bill under rule 213, none of the other defendants joining. The grounds relied on are (1) multifariousness, (2) misjoinder of defendants, (3) and want of equity; the latter ground being—First, a remedy at law; and, second, that no partnership or right to account is shown.
The objections of multifariousness and misjoinder of defendants would be valid, had they been made by either of the defendants the city of Newark or the township of Montclair, as neither of these municipalities has any connection whatever with the contracts of the other, and on objection of either of these defendants, properly taken, the court would be at liberty to dismiss the bill for this reason; and it may be that by reason of this multifariousness, no decree can be finally made against either of these defendants in this suit. But the defendant Regan cannot object to misjoinder of other defendants, or as to multifariousness which only exists as to other defendants. Miller v. Jamison, 24 N. J. Eq. 41; 2 Daniell, Ch. Prac. (6th Ed.) *337, note 3. As against Regan, the bill prays for an accounting of the amount due complainant under several different contracts; and, so far as appears on the face of the bill itself, I see no reason why, as between the complainant and Regan, the account cannot take in all of the contracts in a single bill as conveniently as the joining of similar claims in a suit at law. The dismissal of a bill for multifariousness in joining distinct claims against one defendant is largely a matter for the discretion of the court, and, in the absence of any reference by counsel to authorities against the joinder of such claims, I am not willing to dismiss the bill for this reason.
As to the want of equity in the bill: The general right of an employe, whose compensation is to be a share of the profits, foran account in equity against his employer, has been settled in Alpaugh v. Wood (Err. & App., 1888) 45 N. J. Eq. 153, 16 Atl. 676. Complainant's counsel claimed that the bill showed defendant Regan and himself to be partners, but there is no definite allegation of partnership made in the bill as to any of the contracts except the East Orange contract; and, on the contrary, the allegations of the bill in reference to the contracts (except the East Orange contract) are such as to justify the court in construing each of the contracts between complainant and defendant to be simply that of employe and employer. The bill shows that complainant acted in that view of their mutual relations as to the Montclair and Newark contracts; and the statement at the close of the stating part of the bill, that complainant is now advised by his counsel that Regan and he are partners, is not a sufficient allegation of partnership to allow me, in the face of the other allegations of the bill, to decide, upon the facts set out in the bill, that a partnership exists. If a partnership is relied on, a distinct statement and issue should be made on that point. Treating complainant as an employs whose compensation depended on a share of the profits, he would, under the general rule above stated, be entitled to proceed in this suit for an account against Regan, provided the allegations of the bill had disclosed a necessity for taking the accounting at equity instead of law. But there are no allegations that the accounts are complicated, or cannot as well be taken at law. As to the Montclair contract, the bill shows that the complainant paid all the expenses. Whether he did the same under the other contracts is not shown, but the schedules attached to the bill show that in all of the contracts the complainant has made up an account showing exactly what his expenses under each contract were. If the only account desired from defendant is that of the money he received under each contract, there would seem to be but little complication about the accounting, on his part, and no reason for coming into equity. The bill is not filed for discovery, as distinct from relief. In the absence, therefore, of allegations in the bill showing a partnership, or of complication of accounts giving equity jurisdiction, I must sustain the motion to dismiss on the ground of want of equity.
As to the East Orange contract, which stood in the name of the defendant Nevius, in which (as perhaps sufficiently appears by the bill) there was a sub partnership between the complainant and Regan which would entitle complainant to an account as to Regan, it further appears by the bill that Regan assigned all his interest in the contract to the defendant Nevius for $12,000, and that the complainant consented to this arrangement. The further allegation in the bill that this consent was upon the express condition that complainant's interest in the contract was to be liquidated at $3,700, "to be paid out of the said moneys," would seem, if true; to show a legal cause of action for the money against the person who was to pay the moneys, but whether this was Nevius or Regan is not shown. But this allegation does not show any equitable assignment of any special fund, nor, so far as I can see, any equitable claim. The motion to dismiss is there fore allowed, with leave to the complainant, as on demurrer sustained, to amend his bill, if he be so advised.