
    Jerome B. Palmer, Resp’t, v. William H. Stryker, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    1. Contract—Patrons of cheese factory—Tenants in common.
    Ev.en though the patrons of a cheese factory might he considered tenants in common of the cheese made from the milk furnished by them, the sale of the cheese and separation of the fund derived therefrom is a complete termination of such tenancy in common, and anyone of them may sue to recover his share.
    3. Same—Counterclaim.
    In an action to recover for plaintiff’s share of the proceeds of cheese sold, the defendant counterclaimed for damages alleged to have been sustained by plaintiff’s refusal to deliver milk for the entire season. There was proof sufficient to justify a finding that there was no contract for the season, or that the milk was not correctly weighed. The court charged that if the contract was for the season, defendant was entitled to recover any damages he sustained, unless plaintiff was justified in refusing to deliver his milk because it was not correctly weighed. Held, that this was as favorable to defendant as he had a right to ask.
    Appeal from a judgment, entered in Herkimer county, upon the verdict of a jury for $54.44, April 15, 1889, and from an order denying a motion for a new trial, made upon the minutes of the trial judge.
    The action was brought to recover a balance of $54.60 and interest from September 1, 1888, for cheese sold by the defendant, which was made from milk brought by the plaintiff to the defendant’s factory. The defendant was the owner of a cheese factory, made cheese for the patrons of the factory, sold it, and from the proceeds deducted the expense of making, and divided the balanee among the patrons in proportion to the number of pounds of milk furnished by each. After a sale of the cheese the defendant made out and delivered a statement to each patron, together with a check for the amount due him.
    The plaintiff worked a farm owned by Mrs. Wood on shares. The avails of the cheese was to be equally divided between the plaintiff and Mrs. Wood at the cheese factory. On account of the milk delivered by the plaintiff to the defendant’s factory the defendant made out two statements, one for the plaintiff and one for Mrs. Wood, each showing in detail the amount of chees'e sold, price for which it was sold, the net price per pound, the number of pounds of milk delivered by the plaintiff, and the net proceeds. The net proceeds were divided to give one-half to Mrs. Wood and Mr. Palmer owned the other half of the milk. Mrs. Wood sent no milk to the factory except what plaintiff brought there.
    The plaintiff received $25.01 from the defendant for cheese sold from June 10 to June 24, and received nothing after that. The defendant made out and delivered statements for Mrs. Wdod covering the period from June 24th to the time plaintiff stopped taking milk to the factory, and the last statement and check were delivered by the defendant to the plaintiff’s wife for Mrs. Wood. According to the statements made by the defendant to Mrs. Wood, her share of the proceeds of the cheese sold after June 24, 1888, was $54.60. The plaintiff’s share was the same. The defendant refused to pay the plaintiff his share when demanded.
    
      Malteson & Harvey, for app’lt; Steele & Prescott, for resp’t.
   Martlet, J.

We think the complaint was sufficient to justify the recovery in this action. Conaughty v. Nichols, 42 N. Y., 88.

The evidence given on the trial discloses that the defendant, who was the owner of a cheese factory, and a cheese maker, agreed with the plaintiff and several other of his neighbors that he would receive the milk that should be delivered to him by each, and for the price of one dollar and ten cents per hundred would manufacture it into cheese, furnish everything necessary for that purpose (except each should furnish such rennets as he should have), take care of it until ready for market, then sell it, receive the money, and after deducting the expense of making, figure up and determine the amount that was due to each for the milk furnished by him and pay him that amount. We think the contract made was between the defendant and each of his patrons severally, and the court committed no error in so instructing the jury.

If we were to assume (which we do not decide) that after the cheese was manufactured, and before the sale, the parties furnishing the milk from which it was manufactured were tenants in common of the cheese, it does not follow that after it was sold and converted into money and the share of each determined by the defendant, that the other patrons of the factory had any interest in the portion belonging to the plaintiff. The sale of the cheese and the separation of the fund derived therefrom were a complete termination of any tenancy in common that might have existed between such patrons. When this was done it was the defendant’s duty to pay to the plaintiff his share. That he refused to dp. By this action he was compelled to perform the agreement he made with the plaintiff. The judgment in this case is both equitable and just, and we have found no sufficient reason for overthrowing it.

The defendant’s counterclaim, based upon the plaintiff’s refusal to deliver his milk for the entire season, was disposed of by the trial judge as favorably to the defendant as he had a right to ask. It was submitted to the jury with instructions that if the contract was for the season, the defendant was entitled to recover any damages he sustained, unless the plaintiff was justified in refusing to deliver his milk because it was not correctly weighed. The proof was sufficient to justify the jury "in finding either that there was no contract for the season, or that the milk was not correctly weighed. In either event the defendant was not entitled to recover damages for the plaintiff’s refusal to deliver his milk for the remainder of the season.

The proof also shows that the plaintiff offered to draw his portion of the cheese and that he delivered to the defendant all the rennets that he had that season, and hence, the defendant was entitled to no deduction upon either of these grounds.

We have examined the various rulings of the trial court on the reception and rejection of evidence, but have found no error prejudicial to the defendant or which would justify a reversal We think the judgment was right and should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  