Marsh v. Masterson
| Decision Date | 12 February 1886 |
| Citation | 5 N.E. 59,101 N.Y. 401 |
| Parties | MARSH v. MASTERSON. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
L. W. Rosendale, for appellant.
William A. Coursen, for respondent.
In November, 1873, the plaintiff commenced an action against the defendant, and in his complaint alleged that on the first day of May, 1872, at the city of New York, he entered into copartnership with the defendant for the purpose of carrying on the business of masons and builders; that, by the terms of the copartnership, the partners were to share equally in the profits of the business, the defendant to be allowed interest, however, on his capital; that thereafter, from the frist day of May, 1872, until the first day of August, 1873, the plaintiff and defendant carried on the copartnership business successfully, and that there were more than sufficient assets of the copartnership to pay all its debts; that since the first day of August, 1873, the defendant had taken exclusive possession of the copartnership books and property, and had prevented the plaintiff from having any control over or access to the same; that the plaintiff and defendant were unable to agree upon the terms and mode of the dissolution, and the winding up of the affairs and business of the copartnership, and were unable to agree upon the person who should possess and control the partnership books and assets, and settle up its affairs; and he demanded judgment that the partnership should be dissolved; that a receiver of its property should be appointed by the court, with the usual powers of such receivers; that an accounting should be had, the assets converted, applied, and divided, and for other relief. The defendant interposed a general denial to the complaint, and demanded that it should be dismissed, with costs.
That action was subsequently brought to trial, and the referee found, as matter of fact, that the plaintiff and defendant did not enter into copartnership as alleged in the complaint; and as a conclusion of law he found that the complaint should be dismissed, and that the defendant should have judgment for costs. Thereafter, in October, 1875, the plaintiff commenced this action, and alleged in his complaint that he was by trade and occupation a mason; that the defendant carried on the business of a mason and builder; that on or about the first day of May, 1872, at the city of New York, the plaintiff and defendant made and entered into an agreement whereby, in consideration of the plaintiff overseeing, taking charge of, carrying on, and laboring in the business of the defendant, he agreed to and with the plaintiff to pay him for such services one-half of all the profits derived from the business, after deducting the interest on the capital invested by the defendant; that afterwards, from the first day of May, 1872, until the first day of August, 1873, the plaintiff was continually in the employment of the defendant, and performed the services, and managed, took charge of, and labored for the defendant in his business under the agreement; that the business of the defendant, from the first day of May, 1872, until the first day of August, 1873, was very successful and profitable, and that he made and received as profits of the business, during that time, after deducting the interest on the capital invested, the sum of $21,000; and that for one-half of that amount, less a credit mentioned, the defendant was indebted to plaintiff, under their agreement; and he demanded judgment for $7,862.20, with interest, besides costs. To this complaint the defendant interposed an answer, in which he denied the allegations of the complaint, and alleged in bar of the action the judgment recovered by him in the former action. The cause was referred to a referee, and after hearing the evidence he found the agreement between the parties to be substantially as alleged in the complaint, and he took the account between them, and found there was due the plaintiff, under the agreement, upwards of $7,000, for which he ordered judgment. In reference to the former action, and the recovery therein, he found, as matter of fact, that the action was brought in respect to the same work, and for an accounting and recovery in respect to the same profits for which this action was brought; but he found, as matter of law, that that action was not a bar to this action.
We think the referee correctly held that the former action was not a bar to this action. The causes of action in the two suits were not the same. The cause of action in the first suit sprang out of the alleged relations between the plaintiff and defendant as copartners, and was based upon the right which the plaintiff derived from that relation to an accounting and his share of the profits. Here the cause of action is based entirely upon the contract alleged, and the right of the plaintiff to compensation under that contract and according to its terms. According to the allegations in the complaint in the first action, the plaintiff was equally interested with the defendant as owner of the property and effects of the firm, and as such had an equal right with him to control and dispose of the same. According to the allegations of the complaint in this action, he did not own any of the property or assets of the business, and had no right to dispose of the same, and was only entitled to his compensation to be measured by the profits. The same evidence would not sustain the two actions. To maintain the first action it was necessary to establish the copartnership. To maintain this action it was necessary to establish the agreement employing the plaintiff and fixing his compensation. While the court, in the first action, could probably have permitted the plaintiff so to amend his complaint as to conform it to the proofs, and so as to enable him to recover a share of the profits as a compensation for his services, it was not bound to do so, and he had no absolute right to such an amendment. It cannot, therefore, be said that this cause of action could have been litigated, tried, and determined in the former action. The plaintiff was there defeated because he misconceived the form of his action, not because he did not have a meritorious claim to the profits he was seeking to share in.
A few rules as to the effect to be given to former recoveries may be stated thus: One shall not be twice vexed for one and the same cause, and an allegation of record, upon which issue has been taken and found, is,...
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