Luce v. Hartshorn

Ingraham, P. J. Whether or not the plaintiff was guilty of neglect in performing his duties under the contract made with the defendants, and whether or not the plaintiff had and has influence in promoting the success of the undertaking, were questions of fact to be decided by the referee, and his findings based on contradictory evidence cannot be disturbed. So far as relates to the binding effect of the resolution passed by the association after the contract was made, the defendants have no cause to complain of the finding, that the plaintiff was bound to comply therewith when notified so to do. It may well be doubted whether such resolution could be adopted so as to alter the terms of the original contract, or to add to it new conditions not contained therein. The giving theinformation required could be by paroi, and nothing in that contract called for keeping books as required by the resolution. The only point causing any doubt as to the propriety of the report is as regards the claim made against the association for a false certificate. It is undoubtedly the rule that the property of a partnership shall be first applied to the payment of the debts of the concern before there can be any division of the assets, and it is also the rule that when a person is to be compensated for services out of the profits, the same rule would apply, and there would be difficulty in ascertaining such profits until the claims against the firm were adjusted. I am inclined, however, to the opinion that the defendants, cannot insist upon the application of either of these rules to the present case: 1st. The claim is not admitted by the defendants to be a. valid claim, but they deny their liability therefor. 2d. The defendants have rendered their account up to July, 1869, without noticing such claim, and they had previously, acted on accounts so rendered as fixing the rate of compensation for the year. 3d. No such defence is set up in the answer, and it is not therefore available in the present action. The rendition of the account of receipts and profits for the [336] year, if accepted by the plaintiff, may be considered as an account stated, and as such would bind the defendants, and the omission to set up this matter as a defence in the answer would also preclude the use of it upon the trial. (Powell v. Noye, 23 Barb., 184.) The judgment should be affirmed.