Worden v. Kenny

• Decision Date: 09 January 1917
• Docket Number: 128.
• Parties: WORDEN v. KENNY.
• Court: U.S. Court of Appeals — Second Circuit

239 F. 131

WORDEN v. KENNY.

No. 128.

United States Court of Appeals, Second Circuit.

January 9, 1917

Henry Escher, Jr., of Brooklyn, N.Y., for plaintiff in error.

Charles Oakes, of New York City, for defendant in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

WARD Circuit Judge.

This is a writ of error taken by the defendant to a judgment entered on the verdict of a jury in favor of the plaintiff.

The complaint contained two causes of action: First, that the defendant agreed to associate the plaintiff with him as a partner in the profits of a contract which the defendant had to supervise the construction of a powder plant for the Western Cartridge Company, the terms being that out of $1,000 payable by the company monthly to the defendant $500 were to be set aside for expenses and $500 divided between the plaintiff and the defendant: Five per cent. on the cost of construction, which the defendant was to receive from the Cartridge Company was to be divided between the plaintiff and the defendant after 1 per cent. had been deducted payable to one Deveen, and not over $500 payable to one Moos; that the defendant having accounted to the plaintiff for $250 for the first month refused to recognize him further in the transaction. Second, for $356.25 expended by the plaintiff in the employment of assistants and the purchase of supplies.

As to the first cause of action the defendant denied any contract for a joint adventure, alleging that he had employed plaintiff at a salary of $250 a month; that he paid him the first month and discharged him at the end of it because his services were unsatisfactory. The defendant admitted the second cause of action to the extent of $110.75. The defendant completed the contract with the Cartridge Company in five months and received $7,500; that is, 5 per cent. on the cost of construction, $150,000.

It is quite plain that the jury thoroughly appreciated the nature of the dispute between the parties as to the first cause of action because after having retired they sent the following communication to the court:

'The jury desires further instructions as to whether on the first cause of action the jury is permitted to bring in a verdict for the plaintiff on a basis other than an equal partnership?'

To which the court replied:

'After allowing the proper deductions, the jury could bring in a verdict for the plaintiff only on a basis of an equal partnership,

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