Demarest v. Koch

• Decision Date: 01 December 1891
• Citation: 29 N.E. 296,129 N.Y. 218
• Parties: DEMAREST v. KOCH et al.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 218

29 N.E. 296

DEMAREST

v.KOCH et al.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from superior court of New York city, general term.

Action by John D. Demarest against William Koch, impleaded with Rosanna Spaulding, the complaint alleging that defendants were copartners. The referee dismissed the complaint as to defendant Koch, finding that he was not a partner with Rosanna Spaulding, and the judgment was affirmed by the general term. Plaintiff appeals. Affirmed.

S. V. R. Cooper, for appellant.

Wm. H. Ford, for respondents.

RUGER, C. J.

The question presented in this case is whether William Koch was a partner with Rosanna Spaulding, his codefendant, in the business of building certain houses in New York. The referee having found, as a question of fact, that he was not such partner, and the general term having refused to interfere with this finding, we are concluded thereby, unless some error of law, committed by the trial court, appears in the case. It is claimed by the appellant that the terms of the contract between Mrs. Spaulding and Koch necessarily created a partnership between the parties, and show an error of law. It therefore becomes necessary to consider the provisions of that contract. As, by the terms of a contract made by her with Koch. Mrs. Spaulding became bound to the performance of a previous contract in relation to the same matter between her husband and Koch, and made that contract her contract, it will be convenient hereafter to avoid reference to the husband, and speak of the contracts between Koch and Mrs. Spaulding as being contained in one instrument, executed by them respectively. By these contracts Mrs. Spaulding agreed to secure the title to a certain piece of land 75 feet front and 100 feet and 5 inches deep, on Fifteenth street in New York, subject to a purchase money mortgage of $72,000; and also to procure a builder's loan of $50,000 on such property, and erect two houses thereon, to be finished by a specified day. Koch agreed to furnish one-half of all the money in excess of the $50,000, which was necessary to construct and finish the buildings, and all of such moneys were to be devoted unconditionally to the construction of such buildings. In consideration of this undertaking, Mrs. Spaulding agreed to complete the buildings at the time specified, and, after their completion, to convey to Koch that one of such houses that he should elect to take, by warranty deed, subject to the lien of an equal half of the two mortgages; or, in case the parties should elect to sell the land and builings, that she would pay Koch one-half of the net price received on such sale; ‘it being [as is stated in said contract] the intent of the parties to equally divide any profits which may be realized by the sale of said buildings.’ The performance of this agreement by Mrs. Spaulding was secured to Koch by a mortgage on the property, executed by...