BISOHOFF, J. An agreement for one to pay another, who does not in any sense incur liability for losses, a share of the profits, by way of compensation for the latter’s services, does not create a partnership. Printing-Ink Co. v. Bowker (Com. Pl. N. Y.) 16 N. Y. Supp. 523; Hayward v. Barron (Com. Pl. N. Y.) 19 N. Y. Supp. 383. It is unchallenged, therefore, that J. C. Thompson was only the plaintiff’s employé, and not party to any contract of sale between the plaintiff and the defendants.
The facts which appeared from sufficient evidence upon the trial, and with regard to which the judgment of affirmance of the court below is conclusive upon us (Gundlin v. Packet Co., 8 Misc.
Rep. 291, 28 N. Y. Supp. 572), are that the defendants, through one Benton, a broker, agreed to purchase of Walton Thompson, the son of J. C. Thompson, 210 piles or pieces of timber of certain sizes and at specified prices, which latter were to be subject to deductions for freight charges to be paid by the defendants; that Walton Thompson was acting in the transaction for his father, who was employed by the plaintiff, the owner, in the sale of timber, upon a share of the profits to be derived from sales made by such employé; that, after the plaintiff’s shipment and the delivery to the defendants of a part of the timber, the latter repudiated the contract, upon the ground that, when it was made, they were unaware that the plaintiff was the principal, and from the representations of Benton supposed Walton Thompson to be such; and that, at the time of the repudiation, the plaintiff had shipped 125 piles, of which 99 had been concededly received and retained by the defendants, and for which payment had not been made to any one.
Upon this state of the facts, the liability of the defendants for the fair and reasonable value of the piles retained, deducting therefrom the freight charges paid, is 46 irrefragable. The trial court ruled consistently with that Yiew, and restricted the plaintiffs recovery to such an amount. Neither do the defendants dispute their ultimate liability as above stated, but they contend that the liability was not enforceable in this action.
The contention last above alluded to, however, arises wholly from a misconception of the cause of action alleged. The complaint did not seek to enforce payment of an agreed price, but was for recovery upon a quantum meruit for 125 piles alleged to have been sold and delivered to the defendants, less the freight charges paid by the latter.
The allegation that' the defendants agreed to pay the fair and reasonable value of the timber was, under the circumstances, but the statement of a conclusion of law, and did not necessarily render the action one upon an express contract of sale. Sussdorf v. Schmidt, 55 N. Y. 319.
Hence the court properly admitted proof of value, and the defendants’ motion for dismissal >of the complaint and requests to charge the jury, in so far as such motion and requests were based upon an alleged variance in or failure of the proof, were properly denied. It would be useless waste of time and labor to consider specifically each of the numerous exceptions which appear in the record.
Not one of them .presents error which was prejudicial to the defendants, some having been taken to rulings which were based upon ¡concessions on the part of the plaintiff, in the defendants’ favor. 'The recovery below was strictly in accord with the justice of the facts, and we are therefore content to affirm the judgment appealed from. Judgment affirmed, with costs.
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