Russell v. Bardes

Pratt, J. This is an appeal from a judgment entered upon the verdict of a jury in the county court of Richmond county. There is also an appeal from the taxation of costs. The jury, in effect, found that the claim for which the suit was brought arose under a special contract between the plaintiff Russell individually and the defendant, and the evidence supports that finding. If there was a special contract that Russell should do the work specified in payment of a debt which he then owed the defendant, and also m payment of such further advances in merchandise as the defendant might sell Russell, whatever arrangement the latter might make with another person could not affect such contract. Undoubtedly the main consideration of employing the plaintiff Russell by the defendant was to secure the payment of Russell’s indebtedness, and especially so must have been the trusting of him for more goods. The jury probably thought it would be a fraud to allow the plaintiff to recover upon the ground that he had a partner, and thus avoid the payment of his just debts. Assuming there was a partnership, it was not entered into until after the contract was made with the defendant, so that at that time Russell’s services were pledged to the defendant, and the work was all done under that contract. To allow Russell now to rescind that contract, and recover, upon the ground that he had a partner, would be a gross fraud upon the defendant. Story, Partn. §§ 132, 133; Lindl. Partn. p. 369. The case was fairly submitted to the jury, and no exception to the charge discloses any er 475 ror sufficient to warrant a reversal of the judgment. We also think the defendant was entitled to costs. It was not a case strictly of mutual account, but, as fast as the plaintiff Russell earned anything, it was a payment ym> tanto on account, and the balance only, after the amount of the payments are deducted, constitutes the matter in controversy, which did not amount to a sufficient sum to oust the jurisdiction of a justice’s court. Brisbane v. Bank, 36 Hun, 17; Burdick v. Hale, 13 Abb. N. C. 60; Matteson v. Bloomfield, 10 Wend. 555. It is clear, under the proofs, that $174 of defendant’s claim against Russell was a liquidated claim, as it wah an -old account which had been presented to and admitted by Russell, and which he had promised to pay; so that, deducting that amount from Russell’s claim, the balance of the contested items did not exceed $400. It was not a case of mutual accounts. The order allowing costs must therefore be affirmed. All concur.