Reed v. McConnell

• Decision Date: 30 November 1891
• Citation: Reed v. McConnell, 16 N.Y.S. 586 (N.Y. Super Ct. 1891)
• Parties: Reed v. McConnell et al
• Court: Superior Court of New York

16 N.Y.S. 586

Reed v. McConnell et al

Supreme Court of New York, General Term, Third Department

November 30, 1891

Appeal from special term, Warren county.

Action by John Reed against George McConnell and another. The complainant seeks a recovery--First, for the services and expenditures of the plaintiff in building a tannery for defendants' firm at Oregon, Warren county; second, for damages sustained by the plaintiff because of the breach by the defendants of an oral agreement to take the plaintiff into the tannery business upon the completion of said tannery, in the erection of which the services and expenditures mentioned in the first count of the complaint were rendered and made. The answer admits that plaintiff did render services for defendants in the construction of the tannery, but denies they were of the value claimed by plaintiff, and sets forth the contract in terms different from those alleged by the plaintiff, and alleges that plaintiff voluntarily left defendants' employment; and also sets up a counter-claim, to which plaintiff replied. The trial court found that the oral contract was made substantially as claimed by the plaintiff; that it was to continue 12 years; that after part performance defendants refused to perform, and discharged plaintiff; that plaintiff rendered services and expended moneys in and about the erection of the tannery to the amount of $ 3,388.73; and that plaintiff made a contribution to the tannery enterprise as follows: He allowed the defendants to enter into and take the benefit of a contract with one Griffin for the purchase of 50,000 cords of bark, at 50 cents per cord, which he had orally negotiated with Griffin in his own name; that said bark was really worth 75 cents per cord, making $ 12,500 more than defendants paid for it. The court established counter-claims against the plaintiff to the amount of $ 6,603.68. Upon the trial the defendants took the objection that the contract between the parties was void by the statute of frauds, and the trial court, though not expressly so finding, assumed it to be so, and held that plaintiff, having performed his contract with defendants for building the tannery and running the same, until they without just cause turned him away and refused to carry out their contract with him, he being ready and willing to continue performance, is entitled to recover the sum contributed by him towards buying the site, ($ 100;) also the value of said bark contract, and interest thereon since it was made, (namely, $ 12,500, and interest;) and for his services and expenditures in money and materials, ($ 3,288.73,)--from which should be deducted the amount of the counter-claims, ($ 6,603.65.) These items reckoning interest, made a balance in plaintiff's favor of $ 21,843.13, for which judgment was directed, with costs. Other facts are stated in the opinion. From this judgment defendants appeal. Reversed.

Judgment reversed, new trial granted, costs to abide the event.

Francis A. Smith, for appellants.

Pond French & Brackett, (Alenbert Pond and Edgar T. Brackett of counsel,) for respondent.

Argued before Learned, P. J., and Landon and Mayham, JJ. All concur.

OPINION

Landon, J.

The complaint seeks a recovery for services and expenditures rendered and made by plaintiff while he was permitted by defendants' firm to continue in performance of an oral contract made with them, and also for damages because they prematurely discharged him, and would not allow him to continue performance. The plaintiff introduced his evidence, and rested; and then the defendants objected that the contract was void by the statute of frauds, being neither in writing nor by its terms performable within a year. The court apparently held that the contract was void by the statute of frauds, and, because void, that the plaintiff was, under the complaint, entitled to recover the amount of his contribution, in services, money, and property, to the tannery enterprise, which was the subject matter of the oral contract. The defendants' position is that the plaintiff must recover, if at all, upon the causes of action set forth in the complaint; that is--First, under the contract; and, second, for its subsequent breach; that the plaintiff's evidence disproves the contract counted upon, and takes away the basis of recovery; that the recovery allowed by the court is upon the basis of the invalidity of the contract set forth; that is, upon no contract,--certainly not upon the contract set forth in the complaint. If it was proper to amend the complaint so as to conform it to the theory upon which the recovery was allowed, then the objection is not well taken. The question is not free from difficulty, but we are inclined to think that the amendment suggested might have been made. The evidence was as applicable to one theory of recovery as the other, and the true test, we apprehend, is whether the amendment introduces a new subject-matter of recovery, or whether, with or without additional collateral facts, it is simply a new characterization of the old. Here the plaintiff in framing his complaint was not mistaken as to his facts, but simply as to his rights under them; nor could he know, until the defendants interposed the objection of the statute of frauds, that it would be taken, and if it had not been taken the court would have been bound to unhold the validity of the oral contract, since it was competent (neither good morals nor public policy being violated) for the defendant to waive by his silence the statute of frauds.

We pass now to consider the question whether the allowance to the plaintiff of the estimated profits of the bark contract was proper. The plaintiff was a practical tanner, owning and operating a tannery at North Creek, Warren county, and holding contracts with McConnell & Gardner, of Boston Mass., who were partners and dealers in hides and leather, and in procuring hides to be tanned into leather; of which firm defendant McConnell is the survivor, Gardner having died since the commencement of this action. Prior to March, 1877, the plaintiff proposed to McConnell & Gardner that they should build and operate a tannery at Oregon, in said county, about 12 miles from plaintiff's tannery; they to furnish the funds, and he to superintend and manage the enterprise. The plaintiff pointed out to them the advantages of a particular site, which he designated, among which was the abundance of bark near the...