
    Max Lansburgh, Respondent, v. Thomas Walsh et al., Appellants.
    (New York Common Pleas
    —General Term,
    April, 1895.)
    An agreement by one to pay another, who does not incur.liability for losses, a share of the profits, by way of compensation for the services of the latter, does not create a partnership.
    An allegation in the complaint, in an action for the value of goods sold and delivered, that the defendants agreed to pay the fair and reasonable value of the goods, does not necessarily render the action one upon an express contract of sale.
    Appeal from a judgment of the General Term of the City Court of JSTew York, which affirmed a judgment at Trial Term, rendered for the plaintiff upon a verdict in his favor.
    Action to recover upon a qua/nt/wm meruit for the sale and delivery of timber.
    
      Leo G. Rosenblatt, for respondent.
    
      Miohael J. Sccmlan, for appellants.
   Bisohoff, J.

An agreement for one to pay another, who does not in any sense incur liability for losses, a share of the profits, by way of compensation for the latter’s services, does not create a partnership. W. D. Wilson Print. Ink Co. v. Bowker, 42 N. Y. St. Repr. 34; Hayward v. Barron, 46 id. 665. It is unchallenged, therefore, that J. C. Thompson was only the plaintiff’s employee, and not party to any contract of sale between the plaintiff and the defendants.

The facts, which appeared from sufficient evidence upon the trial, and with regard to which the judgment of affirmance of the court below is conclusive upon us (Gundlin v. Hamburg Am. Packet Co., 8 Misc. Rep. 291), are, that the defendants, through one Benton, a broker, agreed to purchase of Walton Thompson, the son of J. C. Thompson, 210 piles or pieces of timber of certain sizes and at specified prices, which latter were' to be subject to deductions for freight charges to be paid by the defendants; that Walton Thompson was acting in the transaction for his father, who was employed by the plaintiff, the owner, in the sale of timber upon a share of the profits to be derived from sales made by such employee; that after the plaintiff’s shipment and the delivery to the defendants of a part of’ the timber, the latter repudiated the contract upon the ground that when it was made they were unaware that the plaintiff was the principal, and from the representations of Benton supposed Walton Thompson to be such, and that at the time of the repudiation the plaintiff had shipped 125 piles, of which 99 had been concededly received and retained by the defendants and for which payment had not been made to any one.

Upon this state of the facts the liability of the defendants for the fair and reasonable value of the piles retained, deducting therefrom the freight charges paid, is irrefragable. The trial court ruled consistently with that view and restricted the plaintiff’s recovery to such an amount. ¡Neither do the defendants dispute their ultimate liability as above stated, but they contend that the liability was not enforcible in this action.

The contention last above alluded to, however, arises wholly from a misconception of the cause of action alleged. The complaint did not seek to enforce payment of an agreed price, but was for recovery upon a quamtum meruit for 125 piles alleged to have been sold and delivered to the defendants, less the freight charges paid by the latter. The allegation that the defendants agreed to pay the fair and reasonable value of the timber was, under the circumstances, but the statement of a conclusion of' law, and did not, necessarily, render the action one upon an express contract of sale. Sussdorff v. Schmidt, 55 N. Y. 319. Hence, the court properly admitted proof of value, and the defendants’ motion for dismissal of thé complaint and requests to charge the jury, in so far as such motion and requests were based upon an alleged variance in or failure of the proof, were properly denied.

It would be useless waste of time and labor to consider, specifically, each of the numerous exceptions which appear in the record. Hot one of them presents error which was prejudicial to-the defendants, some having been taken to rulings which were based upon concessions on the part of the plaintiff in the defendants’ favor. The recovery below was strictly in accord?with the justice of the facts, and we are, therefore, content to affirm the judgment appealed from. .

Judgment affirmed, with costs.

Pbyob, J., concurs.

Daly, <3h. J.

The exception to the ruling of the trial judge, that the answer does not contain a counterclaim, presents no error, in view of the' fact that it was based upon defendants’ apparent claim of an effect upon the issues for want of a reply. The ruling was substantially that the counterclaim was not admitted for failure of plaintiff to reply, and that decision was correct. The counterclaim in question is found so designated in the concluding lines of a long and elaborate statement commencing “IV. For a further and separate defense to this action,” and containing the particulars of the contract as claimed by defendants. The Code requires a counterclaim to be separately stated, which was not done; and where it is described as a defense the pleader is bound by his choice and cannot claim any benefit from the want of a reply. Acer v. Hotchkiss, 97 N. Y. 408, 409. Defendants were not precluded from proof under it.

This vigorous litigation over the plaintiff’s claim to recover for the value of the ninety-nine logs actually delivered by him and used by defendants is probably explained by what seems to have been a hasty letter written by him in reply to their disclaimer of a contract with him. A little timely inquiry would have shown that they were justified in hesitating at that time to recognize the claim of one who was an apparent stranger to their dealings with Benton, and the whole dispute could probably have been adjusted without litigation.

Judgment affirmed, with costs.  