
    Herman Loorya et al., Appellants, v. Meyer Kupperman, Respondent.
    (Supreme Court, Appellate Term,
    December, 1898.)
    Contracts — The rejection of a mere offer of partnership is not a breach of contract and cannot constitute a counterclaim.
    Where a mere proposition for a partnership is finally rejected, there is no breach of contract which can be made available by the person, rejected as a partner, as a counterclaim to a demand note which he had given to the parties who rejected him; and proof of the time and profits lost by him while the holders of the note were taking an account of his stock with a view to forming the partnership, is inadmissible. ¡
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, fifth district, in favor of the defendant, for the sum of $10 costs, after a trial had before the court, without a jury. The nature of the action and the material facts are stated in the opinion.
    Manheim & Manheim, for appellants.
    M. D. Steuer, for respondent.
   Giegerich, J.

To an action on a promissory note, made by the defendant to the plaintiffs for $125 and payable on demand, the former interposed a counterclaim for $150, damages claimed for an alleged breach of contract as stated below. The trial justice found that “ the parties contemplated a copartnership and that plaintiffs were guilty of a breach of contract and that the damage to the defendant at least equalled the valid claim of the .plaintiffs.”

It is undisputed that the parties negotiated for the formation of a copartnership, but the proof, interpreted in the most favorable light for the defendant, does not, in my opinion, support the conclusion, evidently arrived at by the justice^ that one was formed; it shows, at most, a mere proposition to form a partnership, which the plaintiffs finally rejected, and, no agreement having been established, it follows that there could have been no breach. Therefore, the trial justice erred in admitting, against the plaintiffs’ objections and exceptions, that part of the defendant’s testimony which was to the effect that the former spent four days in his shop taking stock with a view of forming the proposed partnership. Following this, the defendant was asked: “During that time, were you able to manufacture any goods? ” Plaintiffs’ objection thereto on the ground that it was too remote was overruled, an exception noted, and the witness answered: “ That week I could not do it.” “ Q. How much did you manufacture at this season of the year daily in your factory? Objected to as immaterial, irrelevant and too remote. Overruled. Exception. A. Four hundred dollars worth of goods a week. * * * Q. What is the difference between the amount it would cost to manufacture the articles manufactured in that week and the market value of those articles at that season of the year? Objected to as immaterial and irrelevant. Overruled. Exception. A. Seventy-five dollars is the difference between the market value of the articles and the cost of manufacture.” As the nature of the goods manufactured by the defendant was not even mentioned upon the trial, I fail to perceive how the trial justice could have arrived at any definite conclusion respecting the profits which might have been realized from their manufacture during the period referred to. Assuming, for the sake of argument, that the parties did become partners, and that the evidence tending to establish the copartnership was sufficient, then the proof failing to show that the partnership was to continue for any definite period, it could have been brought to an end at any time at the -election of any of the partners (17 Am. & Eng. Ency. of Law, p. 902), and consequently the plaintiffs’ termination of the partnership was not a breach of the alleged agreement.

For these reasons, the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Beekmah, P. L, and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  