
    Addison Alger, Plaintiff and Appellant v. Julia Raymond, Administratrix, and Spencer Gregory, Administrator of James Raymond, dec’d, Defendants and Respondents.
    1. Where, in an action brought against M. and R., to recover of them, as joint contractors, with the plaintiff, the value of materials furnished and work done hy him in erecting a building, it appears that the work was done and materials furnished under a written contract to which the plaintiff and M. were alone parties, R. cannot be held liable, even though it appear that the building was erected on his land; and that he performed some acts of supervision and endorsed M.’s notes, which were used in making payments on account.
    2. To justify a recovery against him, the evidence must at least justify the conclusion of fact that the contract was made for the joint benefit and account of M. and R., and for their mutual risk and profit, there not having been any communication between R. and the plaintiff.
    3. Where the facts formally found by a referee authorize the judgment he orders, it will not he reversed merely because his report does not formally dispose of all the issues, where there is no evidence in the case which warrants a finding of any of the issues not formally passed upon, in favor of the appellant.
    4. A creditor's uniting with one of two joint debtors in his petition for a discharge under the two-third act, and a discharge of such debtor, releases the other debtor from liability. (Per Hoffman, J.)
    (Before Boswoeth, Oh. J., and Hoffman and Robeetson, J. J.)
    Heard December 3,
    decided December 23, 1860.
    This is an appeal by the plaintiff from a judgment entered in favor of the defendants upon the report of a referee.
    The action was originally commenced against Alvah Mann and James Raymond; and the plaintiff, by his complaint, claimed to recover of the defendants jointly for work hy him done’, and materials furnished toward the erection of the Broadway theatre in the city of New York. The claim was to recover what the work and materials were reasonably worth.
    
    The defendant, James Raymond, appeared, and put in his answer, by which he denied any joint or individual liability, and, among other things, alleged that the work was done and the materials were furnished by the plaintiff, for, and on the sole account of the defendant, Mann, “ and under, and in pursuance of a written contract in that behalf made between the said plaintiff and the said Alvah Mann.”
    
    To the answer the plaintiff put in a reply, admitting that the work, labor and materials were furnished and provided by the plaintiff in pursuance of the written contract, but alleging that he was induced to enter into the contract by the fraudulent representation of Mann, that he alone was interested in the erection of the building, whereas both defendants were jointly interested therein, and also alleging that Mann, without sufficient cause, refused to permit .the plaintiff to proceed with his contract, and finish the same in pursuance of the terms thereof.
    While the action was pending on the issues so framed, the defendant Raymond died, and the action was continued against his personal representatives by supplemental complaint filed for that purpose in pursuance of an order of this court, made on the 24th day of ■ July, 1855. The plaintiff, by his supplemental complaint, among other things, alleged that in 1851, while the action was pending, he united with Mann in a petition for the discharge of him. the said Mann, from his debts under the two-third act, and that Mann was afterwards discharged under that act.
    The action was referred to Thomas Nelson, Esq., as sole referee, who found and reported, -
    11 That the work done and materials furnished, for the value of which a recovery is sought in this action, were done and furnished under a written contract made between the plaintiff and one Alvah Mann, which contract was not produced before the referee, nor its contents or terms proved on the trial.” To which the plaintiff excepted.
    
      “ That the work in question was not finished by the plaintiff, and there is no evidence that the plaintiff was improperly prevented from completing it, or that he was improperly discharged.”
    To which the plaintiff excepted.
    “And as conclusion of law the said referee decided that there was an entire failure of proof by the plaintiff, and that he could not recover on a quantum meruit, or otherwise, without the production of the contract or proof of its terms, and directed judgment to be entered in favor of defendants, dismissing the plaintiff’s complaint.”
    To which the plaintiff excepted.
    Judgment having been entered upon the report, the plaintiff appealed from it to the general term.
    
      James W. Gerard, for Appellant.
    I. The contract between the plaintiff and defendant Mann, was rescinded by the act of Mann, who had put it out of the plaintiff’s power to complete it, and the plaintiff had a perfect right, by law, to recover the amount owing him, in an action, for the value of his labor and materials, that is, the value without reference to contract price.
    1st. There is no doubt that the contract was rescinded —its completion by plaintiff was prohibited.
    II. The first action was maintainable against Mann and Raymond, on the ground that they were the parties for whose benefit the labor was done and the materials furnished, whether they were technical partners or not.
    III. The labor and materials were done and furnished in their presence, with their knowledge and privity, and therefore, by implication, at their request.
    IV. Raymond was a principal with Mann, either as partner or sole principal, in erecting the building, and therefore, on the discovery of that fact, he could be made liable for the labor and materials.
    V. Mann, by pretending to be principal and suppressing the name and interest of Raymond, perpetrated a fraud upon the plaintiff, which vitiated the contract, (even if it had not been rescinded,) whereby the contract, and the acts of the plaintiff under the same, could have no effect to suspend or take away the liability of Raymond for the labor and materials.
    yi. The non-suit was wrong, by reason of the issues of fact formed by the pleadings, to-wit:
    1st. The joint interest or partnership of Mann and Raymond,. and
    2d. The fraud by which the plaintiff was induced to bestow his labor, and furnish his materials, upon the credit of Mann; the plaintiff having produced evidence which tended to establish both issues againstthe defendants.
    
      Charles Jones, for Respondent.
    I. The joint undertaking on the part of Alvah Mann and James Raymond, alleged in the pleadings, was not proved, nor is there any evidence of the retainer or employment of the plaintiff by Raymond.
    1st. The work and materials were furnished under a written contract between the plaintiff and Alvah Mann, and Mann alone retained and employed the plaintiff, when he undertook to do the work and furnish the materials.. This of itself disproves the allegation of a joint undertaking or joint request.
    2d. No partnership between Mann and Raymond was proved. ít was not shown that they were jointly interested in the land or building, or that the theatre was erected for the purpose of a business to be carried on by them, or in which they were to be interested as partners, or otherwise.
    3d. Even if Mann and Raymond were jointly concerned in building the theatre, the promise of Mann would not bind Raymond, there being no agreement between them ultimately to share in the profit and loss. (Porter v. McClure, 15 Wend. 187.)
    
      Nor does the law merchant respecting dormant partners extend to speculations in land. (Pitts v. Waugh, 4 Mass. 424 ; Smith v. Burnham, 3 Sum. 470.)
    4th. The fact that Raymond made himself responsible to others for work and materials, does not help the plaintiff. This is consistent with his, Raymond, being guarantor or loaning his credit, and does not establish a partnership, or even a community of interest, as between him and Mann. All the money was paid by Mann, and Raymond was indorser only of the notes.
    
    II. The plaintiff wholly failed to prove the allegations of his reply. It does not appear by the evidence that Mann made the false 'representations alleged, or that the plaintiff fully performed the work.
    III. The defendants, representatives of Raymond, stand in the relation of sureties merely—Mann being primarily liable as principal, as was also his estate. The act of the plaintiff in uniting in the petition for the discharge of Mann under the “ two-third act,” under which the latter was discharged, operated' as a release of the defendant’s and Raymond’s estate.
    The judgment should be affirmed.
   Hoffman, J.

—The plaintiff stated his cause of action in his complaint, to be an employment by the defendants, ' to perform the mason and carpenter’s work of the Broadway theatre; that he did the work; that it was worth 128,664; that he had received about $10,000, and that the balance was due to him.

It is clear upon the proofs, that the original employment was by Mann, under a written contract made with him solely, and was given to him alone. There is no evidence of any direct contract between the plaintiff and Raymond; none of any engagement between them ; none of Raymond’s knowledge of this contract; none that the plaintiff, when he began the work, or at any period of its progress, looked to Raymond for payment or security.

The plaintiff in his reply, admits that he made the contract with Mann as stated in the answer, but alleges that he made it under false representation by Mann, that he alone was interested, and changes his ground of action, . and seeks to make Raymond responsible on the theory that both defendants were, at the time of the contract, jointly interested in the erection of the building, and in the work and the materials furnished by the plaintiff in pursuance of the contract, but of which interest he was ignorant until some time thereafter ; that the work was done, and the materials furnished for their joint benefit.

Raymond was the owner of the. ground on which the theatre' was built. Presumptively, the title to the building itself was in him. His declarations as to being the owner, are proven. His intervention in the purchasing of lumber, his supervision and direction as to the plans and work, are shown in the testimony. His and Mann’s joint notes were to have been given to Collyer. His indorsements were given. In short, there is much evidence to prove some joint concern and interest between Mann and Raymond in the theatre.

The referee has not passed upon this evidence. He finds that there was a contract, that it was not produced, nor its contents proved. That the plaintiff could not recover without the production of the contract, or proof of its terms.

Biit had the referee found the facts as the evidence warrants, there would have been found either some unknown, undefined community of interest between Mánn and Raymond in the theatre, or the sole ownership in Raymond. The former would not have been sufficient to make Raymond liable, under the decision in Porter v. McClure, (15 Wend. 187 ;) the latter is not proceded upon as a ground of action, and naked ownership, without contract, recognition, or proven agency, would not be enough.

The contract is shown to have been diligently sought-for by the plaintiff, and’-not found. The papers of Mann appear to have come to Houghton’s hands, and no copy of the agreement has been found.

The contents of the contract are stated to a great extent by the witness Trimble. He says the compensation was between $15,000 and $20,000. The plaintiff admits in his complaint, that he has been paid $10,000.

The reply, as before observed, admitted the making of the contract with Mann, and proceeds upon the joint interest, and consequent joint liability, of Raymond with Mann; it then sets forth, that after the plaintiff had performed the labor and furnished the materials, Mann, without any sufficient cause, refused to permit him to proceed with the contract, and finish the same in pursuance of the terms thereof. He therefore committed a breach thereof, and the plaintiff is therefore entitled to recover the value of the work and labor, &c., without reference to the contract, and as though .the same had not been made.

In respect to this, the referee finds, “ that the work in question was not finished by the plaintiff, and there is no evidence that the plaintiff was improperly prevented from completing it, or that he was improperly discharged.”

In respect to the first clause of this finding, it is no doubt literally true, upon Trimble’s evidence, although only some little things were left to be done. As to the last, we agree with the referee. There was some trouble, and the plaintiff was told to go out of the building, and never show his face there again.

The plaintiff seeks to make Raymond responsible for a wrongful act of Mann, in preventing the due execution of a contract, and thereby giving him a right to resort to an action for value, independently of the contract. He has proved that a difficulty arose between him and Mann, and that the latter sent him from the premises. It seems to me he has wholly failed in supporting his allegation.

It deserves notice, that the work of the plaintiff was completed about September, 1847, and he does not sue until March, 1851.

I think, that upon the case made, the plaintiff has not made out a sufficient ground for abandoning the contract, and going upon a quantum meruit, as against Mann. Therefore he must fail as against Raymond, conceding they were jointly liable ; and certainly he has not made out a ground of action on the contract.

I think the referee is right, on this ground, in his decision.

There is another point in the case not noticed in the findings, but of importance.

The supplemental complaint of July, 1855, states, that on or about the day of 1851, the plaintiff, pursuant to the statute in such case provided, united with Mann in a petition for the discharge of the said Mann, from his debts, in accordance with act 3, title 1, ch. 5, of part 2 of the Revised Statutes, commonly known as the “two-third act," and upon such petition, the said Mann was duly discharged from his debts, including the cause of action of the plaintiff set forth in the original complaint.

This being put in issue by the answer of the present defendants, was proven by the plaintiff, the discharge being granted the 18th of September, 1851. The action was commenced March 13, 1851. Mann made no defense, and died insolvent, in July, 1855. Raymond answered in April, 1851, and died March, 1854. On the 24t,h July, 1855, an order was issued continuing the action against the representatives of Raymond, the present defendants, under the supplemental complaint.

The union of the plaintiff, with Mann, in procuring the discharge, was equivalent to a release by him, of Mann, from this liability; and it seems to me operated to discharge Raymond from a liability which the plaintiff insists was a joint one. (Parsons on Con. vol. 1, 23, 24, and cases in notes.)

I understand that the general term may look into the evidence, and act upon facts proven thereby, to sustain a referee's decision, although not found. The difficulty is, that the Court of Appeals may not do this, and must have the facts specially found. The thirty-eighth rule of the Supreme Court meets this case, as I understand it. I think the judgment should be affirmed.

Bosworth, Ch. J.

—The fact of a partnership between Mann and Raymond, in the theatre building, or in that and the land on which it stood, is neither found nor proved.

There is a difference between a joint interest and partnership. There may have been a joint interest; that is, Raymond may have owned the land, and have been under obligation to Mann to pay some part of the cos„t of the building, and still Mann?s contracts not affect Raymond; nor Mann’s acts be Raymond’s acts.

On the facts as found, the judgment is right; and I do not think the evidence warrants the finding of any facts which would make Raymond liable to the plaintiff, as a contractor with him, either solely, or jointly with^Mann.

Robertson, J.

—This was an action against two" persons for work and labor done for them jointly, in the erection of a building in the city of New York, on land belonging to one of them, called the Broadway theatre.

On the trial, it appeared that the building in question was erected under a contract, under seal, executed by one party alone. The loss of the instrument was proved, and .an attempt was made to prove its contents. The only witness examined as to them, was able to state part of the work to be done, but was unable to state the compensation within $5,000, or how it was to be paid, although it was payable in installments. He was able to state there was a time limited for its fulfillment, but was unable to state when it was, nor whether it was before the plaintiff quit work. The right of recovering for work done, on a general complaint, although there was a special contract, .depends upon the terms of such contract. If it specify a particular time and the work is not finished, the mechanic cannot recover for what he has done by that time; and it is not sufficient where work has been done under a contract to prove enough of its contents to show merely that the work, as done, corresponded with that specified. The party against whom the claim is made, is not to suffer from the defect of the evidence ; he is entitled to have the whole contents laid before the court to see if there be not some drawback on the plaintiff’s right to recover, as if the instrument itself were in court, to have the whole of it read. The failure of the plaintiff to prove the whole, should not be a detriment to the defendant. The case of Ladue v. Seymour, (24 Wend. 60,) is directly in point, and the reasoning of Justice Bronson, is unanswerable. It settles the question, that the proof of the existence of a written contract, is sufficient answer to an action upon a quantum merunit and valebant, for work and materials, and that the plaintiff is bound to prove all the contents of such contract to show that there Avas no obstacle to his- recovery therein.

The other objection, of the contract being under seal, and with only one of the parties _ sued, was equally fatal, although not noticed by the referee.

For these reasons, as well as those assigned by my brethren of the court, I concur in thinking the report of the referee should be affirmed.

Judgment affirmed.  