Reed v. McConnell

• Decision Date: 24 May 1892
• Citation: 133 N.Y. 425,31 N.E. 22
• Parties: REED v. McCONNELL.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 425

31 N.E. 22

REED

v.McCONNELL.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, third department.

Action by John Reed against George McConnell, as survivor of McConnell & Gardner, for breach of partnership contract. From an order reversing a judgment of the special term for plaintiff, plaintiff appeals. Affirmed.

Alembert Pond, Matthew Hale, and Edgar T. Brackett, for appellant.

F. A. Smith, for respondent.

ANDREWS, J.

This is an appeal from an order of the general term reversing a judgment for the plaintiff entered upon a decision of the court on a trial without a jury, and granting a new trial. It not appearing that the order of reversal was upon the facts, it is conclusively presumed that the reversal was upon the law, and the order must be sustained if it appears that any material error of law, pointed out by proper exception, was committed on the trial against the party against whom the judgment was rendered. The court on the appeal from the order will scan the whole record, and all exceptions taken on the trial by the party obtaining the order of reversal are before the court for consideration. The court is not confined to the examination of the exceptions upon which the general term granted the order. If upon any ground the order is justified, it must stand, even although we may disagree with the general term as to the particular ground upon which it proceeded. The whole record is before us, and all the exceptions, and the respondent may challenge every ruling of law against him contained in the record, and the court must find that no error was committed to his prejudice in any ruling to which exception was taken, before it can reverse the order granting a new trial. People v. Board, 70 N. Y. 228;Mackay v. Lewis, 73 N. Y. 382;Roberts v. Baumgarten, 126 N. Y. 341, 27 N. E. Rep. 470.

There is an insuperable difficulty in the way of the plaintiff on this appeal. He has been permitted to recover upon a cause of action not alleged in the complaint. He sought in his pleading to recover damages for the breach of an alleged contract. He failed to establish that any valid contract was made, for the reason that the contract proved was void by the statute of frauds. It was substantially admitted by the plaintiff on the trial that the contract sued upon was within the statute, but it was contended on his behalf that, the defendants having insisted upon the statute as a bar to the enforcement of the contract, the plaintiff was entitled to recover in this action the value of any property received by the defendants from the plaintiff thereunder. The defendants insisted that this was a new and different cause of action, not within the pleadings, and inconsistent with the cause of action alleged in the complaint. The plaintiff made no application for amendment. The trial judge overruled the contention of the defendants, and awarded to the plaintiff, among other things, the sum of $12,500, as the value of a bark contract, which the court found was a contribution of the plaintiff to the tannery enterprise, which was the subject of the void contract. For a proper understanding of the question, some of the essential facts should be stated. The complaint contained two causes of action. The first was for work, labor, and services, and money paid and material furnished by the plaintiff in building a tannery on premises of the defendants. The complaint, for a second cause of action, alleged that the work, labor, and services, and the money and materials, mentioned in the first cause of action, were rendered and furnished ‘under an agreement with the defendants that they would take the plaintiff as an equal partner with the defendants in the tannery business to be carried on at the said tannery; that, after the completion of said tannery by the plaintiff, the defendants refused to take the plaintiff in as said partner, although often requested so to do, by means whereof the plaintiff has been damaged in the sum of fifteen hundred dollars, wherefore the plaintiff demands judgment,’ etc. This was plainly a cause of action for damages for the breach by the defendants of the contract to admit the plaintiff as a partner in the tannery business. The nature of the alleged contract, whether verbal or written, was not alleged in the complaint. The answer denied the contract alleged, and interposed several defenses and counterclaims. On the trial the plaintiff, in support of the second cause of action, gave evidence tending to show that in March, 1877, the plaintiff solicited the defendants to build a tannery on premises for which he had a contract of purchase. The plaintiff at the same time held a verbal option from one Griffin to purchase from the latter 50,000 cords of bark from his lands in the vicinity, for the price of 50 cents a cord. It was thereupon verbally agreed between the plaintiff and defendants that the defendants should furnish the plaintiff the money necessary to complete the purchase of the tannery site and erect the tannery. The plaintiff was to cause the proposed site to be conveyed to the defendants, and to give the defendants the benefit of his verbal option from Griffin for the purchase of the 50,000 cords of bark, and procure Griffin to enter into a contract with them for the sale of the bark on the terms of the verbal option. The plaintiff was to superintend the building of the tannery, and, when completed, was to conduct the tannery business therein for the defendants, and was to receive as his compensation $1,000 a year, and one third of the net profits. The tannery site was conveyed to the defendants. The plaintiff procured Griffin to enter into a contract with the defendants to sell to them the 50,000 cords of bark, at the price of 50 cents a cord. The tannery was built, and the plaintiff conducted the business therein until October, 1878, when, as is found by the trial judge, the defendants, in violation of their contract and without cause, discharged him, and refused further to carry out their contract with him. The evidence shows that it was contemplated that this arrangement between the parties was to continue 12 years, that being the period which would, as supposed, be required to exhaust the bark purchased of Griffin.

The plaintiff, as part of his case, was permitted, against the objection of the defendants that the evidence was incompetent and immaterial, to show the value of the bark contract. On the assumption...