
    George Day, Respondent, v. Thomas Carmichael, Appellant.
    
      Pleading—failure to join the defendant’s copartners.as pan'ties—-the objection inust. be taken by demurrer or answer—•proof that a contract was made by. one partner individually and not for the firm.
    
    
      . In an action on a contract, in which the issue is whether the defendant made the contract in his individual capacity or on behalf of a firm of which he was a member, the objection that the defendant’s copartners had not been' joined as parties defendant, if it appears upon the face of the complaint, is deemed to be waived unless taken-by demurrer or answer.
    
      What evidence is sufficient to warrant a finding that a contract sued upon was made by the defendant in his individual capacity and not on behalf of his firm, considered.
    Appeal by the defendant, Thomas Carmichael, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 6th of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1899, denying the défendant’s motion for a new trial made upon the minutes.
    This action was brought to recover a balance alleged to be due the plaintiff for services rendered and expenses incurred under a contract with the defendant.
    
      James Dunne, for the appellant.
    
      Edmund Lids Mooney, for the respondent.
   Ingraham, J.:

There were two questions in this case, both of which were submitted to the jury. The sole ground upon which the defendant asks us to reverse the judgment is that the finding of the jury was against the weight of evidence. The first question is as to whether the defendant, when making the contract with the plaintiff, acted individually, or as a member or representative of the firm of Dent, Palmer & Co.; and the second is as to the value of the plaintiff’s services. It seems that the defendant was a member of the said firm and is its sole representative in this country; that the plaintiff had knowledge of the fact that the defendant did represent such firm, although it does not appear that he was aware of the defendant’s exact relation thereto. That he was employed by the defendant is conceded. From the plaintiff’s testimony it appears that he was introduced to the defendant by a Mr. McLanahan as a person who might be able to help him at Hempstead ; if not to save the water works he may be able to sell, to the Hempstead people the old plant.” The defendant then explained the situation to the plaintiff. He (the defendant) said that he was interested in certain water works in the town of Hempstead ; that the town at an election had adopted a proposition to build public water works upon an issue of bonds and that the contract for the new water works had been made. The defendant stated that they had sold the bonds, or a great many of .them, to widows and orphans, “ and he felt so bad about it that he had been paying the interest out of his own pocket on those bonds, and the people who owned the bonds did not know this and did not know but what they were as good as when they bought them, and he felt very badly about it because he had advised the sale of these bonds, and they knew nothing about it on the other side except wdiat he told them, and he felt that it was on himself, and that he did not know how he was to break .it to the people that the thing was no good any more. He said : We will have to put our hands in our pockets and buy the bonds back at the price we sold them for, will' have to buy them all .back,’ and he said, ‘ how will you do it % ’ I said : ‘ I don’t know how. . I will have to go over the ground and find out how to do it.’ ” In consequence of this interview the plaintiff testified that he spent considerable time and money in investigating the matter at Hempstead, and finally discovered that there was a mistake made in ,the notice for the election ; that the election was illegal, and that a new election would have to be-ordered. After this discovery was made the plaintiff went back to the defendant and told him that he had found some means which he thought could save him or would give him “ a big show to get his water works back,” and the plaintiff then said to the defendant: “ How, this is a case where I will have to go to work and employ special help.” The defendant replied : “Whatwill .it cost ? I said, ‘ it will cost yon from $5,000 to $10,000 ; I will make it just as low as I can.’ ” The defendant said: “ If you get the works back I am willing.”

The defendant’s evidence as to his relations to the plaintiff is somewhat different. He alleges'that the plaintiff was first employed on the defendant’s return, from Europe about the end of September, 1895. The defendant testifies : “ On my return from Europe, about the end of September, 1895, Mr. Day called on me and stated that he .had found there was a flaw in the election ; that the advertised notice of election was too short, and it. was required to havé a fresh election to make the bonds legal. He then offered his services. He said he' had in his office a Mr. Driscoll, who understood such work very well; that he (Mr. Day) had a large acquaintance at Hempstead, and he thought if we were prepared to offer better service to the village than they had previously had that we might get them to reconsider their decision. Mr. McLanahan advised me to retain Mr. Day. I retained Mr. Day without making any bargain whatsoever.” It does not appear that there was any statement made to the plaintiff that such retainer was ■on behalf of Dent, Palmer & Co. or other than an individual retainer of the defendant. It does not appear that the plaintiff was informed that the defendant was a member of the firm of Dent, Palmer & Co., or was acting as its representative, or in its interest. The defendant spoke in the first person, and whether the retainer was in June or September, so far as the question of the individual responsible for the services rendered by the plaintiff is concerned, this ■evidence, standing alone, would indicate that it was a personal contract with the defendant, rather than a contract of the firm that he represented. The court, in submitting the case to the jury, instructed them that if the defendant made this contract as an individual, he would be liable upon it, although his firm might reap some of the benefit for the services that he rendered ; but the court, subsequently, at the request of the defendant, said that “ if the jury believe that at the time of the making of the alleged contract the defendant was a member of the firm of Dent, Palmer & Co., and in respect of such contract the defendant acted for and on behalf of his firm, and not in an individual capacity, their verdict must be for the defendant.” These instructions were certainly as favorable to the defendant as was justified, and the jury by their verdict having found that the employment was by the defendant individually, and such verdict being sustained by the evidence, their verdict is conclusive.

In this connection it is well to call attention to the fact that there was no allegation in the answer that there was a defect of parties defendant, in that other members of the firm of Dent, Palmer & Co. are not parties to the action. The answer alleges that the contract was made by the firm and not by the defendant, but as the defendant was a member of the firm, he was. liable for the plaintiff’s services if the contract was made by the firm; and if the defendant had desired to take advantage of the fact that the defendant partners were not joined as parties defendant, he was required to take such an objection by demurrer, if the objection appeared. upon the face of the complaint, or, if not, by answer; and when such an objection is-not taken either by demurrer or answer, the defendant is deemed to have waived it. (Code Civ. Proc. §§ 498,. 499.) This question, however, seems to have been submitted to the jury by the court without objection, and their determination of the question obviates the objection.

The other point relied on by the defendant is in substance that the amount allowed by the jury to the plaintiff is excessive. There was a conflict between the evidence of the plaintiff and that of the defendant as to the services rendered by the plaintiff, the plaintiff’ testifying that he was engaged in this business from June until the latter part of' October, while the defendant testified that the first employment of the plaintiff was at the end of September, and that the services that he rendered personally were unimportant. In view of this conflict, and considering the evidence of the understanding between the parties as to the amount to be paid for the work if successful, it would seem that the question of the value of the plaintiff’s services was for the jury, and that, in view of this testimony, the verdict which awarded as the total cost of the services rendered by the plaintiff and his associates the sum of $5,000 was not so excessive as to justify the interference of the court upon appeal. It would appear from this evidence, if believed, that it was agreed that the compensation which was to be paid was to be to a large extent contingent upon success; that the defendant was expressly informed that the cost would be at least $5,000 if the plaintiff accepted the employment, and to that the defendant agreed if the water works were saved; and it cannot be said that a verdict which enforced this agreement was against the weight of evidence. The jury had the power to believe the plaintiff as against the defendant, and upon the whole case I think the verdict was fairly sustained by the evidence.

There are no exceptions to the charge or to rulings upon the evidence relied on by the defendant, and the judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.'  