
    Ernest T. Villareal, Respondent, v. Meno Lissauer and Others, Copartners Doing Business under the Firm Name and Style of M. Lissauer & Cie, Appellants.
   Judgment modified by reducing the amount thereof to $8,118.99, with interest, and as so modified affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings will be made accordingly. Certain conclusions of law are disapproved, to be stated in the order. Opinion by Davis J. [not to be published because not of general interest]; Lazansky, P. J., and Scudder, J., concur; Young, J., dissents and votes to reverse the judgment and dismiss the complaint and to direct judgment in favor of defendants on their counterclaim with the following memorandum, in which Tompkins, J., concurs: In my opinion, under the contract of November 11, 1927, between the parties, plaintiff was employed solely to settle certain existing differences between the defendants and El Potosí Mining Company, and not to negotiate a new contract between the defendants and Potosí Company. It is conceded by plaintiff that all of these existing differences were finally settled and adjusted in May, 1928, and were not the subject of any further negotiation. The question of excessive iron content in the ore, which had first arisen a few days prior to this settlement, was held in abeyance for further negotiation. The making of the contract of October 15, 1928, between defendants and the Potosí Company was necessitated solely by the question relating to the excessive iron content, and, although that contract embodied and merged all previous contracts, the evidence shows that the further allowances given to defendants by the Potosí Company under that contract were to cover this excessive iron content. Plaintiff was, therefore, entitled to such advantages as resulted to the defendants from the agreement or settlement of May 10, 1928, and not to any additional advantages resulting from the settlement of the iron controversy by the contract of October 15, 1928. Under this construction of the contract of November 11, 1927, the evidence shows that plaintiff has been overpaid by the defendants and his complaint should, therefore, be dismissed and judgment directed in favor of the defendants on their counterclaim. Settle findings and order on notice.  