Barry v. Coville

The main question on this appeal is over the allowance by the referee to the plaintiff of the sum of $985 for services. The finding of the referee is that the defendants, Coville & Morris, are indebted to the plaintiff “for services performed for them, at their request, in and about and growing out of the patents and inventions, part of the subject-matter of this action, commencing November 12, 1884, and ending July 1, 1885, being 197 working days; and that I find that the value of said services to be worth $5 per day, and amounting to the aggregate sum and value of $985.” This matter of services was within the scope of the reference, as provided for by the interlocutory judgment. It was a thing to be determined before the amount that the plaintiff equitably should pay before having a reassignment could be ascertained. It was a part of the accounting asked for in the complaint, and which the court in the interlocutory judgment adjudged that the plaintiff was entitled to have. It therefore follows that the point of defendants, that the judgment appealed from, so far as it affects the question of services, has no foundation in the original decision of the special term, and the interlocutory judgment thereon, is not well taken. The case of MacNaughton v. Osgood, 114 N. Y. 574, 21 N. E. Rep. 1044, does not apply.

It is, however, urged that whatever services the plaintiff performed wrere on the mortgaged property, and therefore he is not entitled to credit therefor. Under the agreement between1 the parties, dated October 2, 1884, the plaintiff assigned to defendants, Coville & Morris, a two-third interest in certain patents, and" they agreed to furnish him with certain funds, and with goods and provisions, so long as they were satisfied with the success of the manufacturing and carrying forward the business under the inventions; and the agreement provided that, after a certain period, if the defendants became satisfied that it would not be profitable for them to continue their interest and obligations, they might terminate the agreement, with the right, however, to retain their interest as security for any indebtedness from the plaintiff up to the time of such termination. Under this provision, the defendants terminated the agreement on July 1, 1885; so that, during the time covered by the findings of the referee, the defendants were in the position of owners of two-thirds of the patents. The employment, as claimed by plaintiff, was subsequent to the contract of October 2, 1884, and was something that the contract did not require him to do. It was therefore competent for the defendants, if they so chose, to employ the plaintiff, and the fact that they afterwards voluntarily abandoned their ownership fur*6nishes no good ground for them to say that the plaintiff ought not to be paid according to their agreement. The statute of frauds does not apply. The work was at defendants’ request, and presumably for their benefit. The case of Belknap v. Bender, 75 N. Y. 446, is not in point. There the promise was to pay a prior debt, and was without consideration. But the defendants further say that the evidence is not sufficient to sustain the finding of the referee. The record shows that no question is made on the appeal “of the value of plaintiff’s services per diem." The only things, then, to consider are whether the services were performed for the defendants at their request, and for the length of time as found by the referee. The plaintiff testifies that on or about November 12, 1884, at the special request of the defendants, and upon their promise to pay him for his time, he left other work at which he was then employed, and went to work upon improvements on patents in which defendants were interested, mainly a roller skate, and so continued until after the defendants terminated the original contract. There was some evidence that corrofesrated the plaintiff. The defendants denied the arrangement, and some circumstances were shown that corroborated their view. Where the truth was, was for the referee to determine, and we think his conclusion on that subject should not be disturbed. The referee charged the defendants with royalties to the amount of $722.35. The defendants claim the amount should be only $489.01. The evidence, however, is sufficient to sustain the referee on this subject. The referee allowed the defendants $1,196.70, “for amount of grocery account, $1,263.23, less $66.53, disallowed.” The defendants claim there is no proof authorizing this disallowance. In this we agree with the defendants. There is proof from which it may be suspected that there was before the referee some statement as to errors in the grocery account, but no such statement appears in the record, and it is certified to contain all the evidence on this subject. We must therefore assume that it does. It follows that the credit to defendants should be increased by the sum of $66.53, with interest from February 9, 1887, and this will operate to reduce the judgment the same amount. Judgment and order modified, by deducting from the amount of the judgment against defendants the sum of $66.53, and interest from February 9, 1887, and as modified affirmed, without costs of this appeal to either party. All concur.