Lynch v. Bosch

THE COURT.

Action to recover profits earned in a joint venture.

Defendant had procured a contract to furnish the materials and perform the labor necessary for the work of furring, lathing and plastering a certain thirteen-story steel and concrete structure. The amount to be paid defendant for the entire work, unségregated, was the lump sum of $43,200, subject to increase or diminution in case of changes in the plans and specifications. After obtaining said contract defendant invited plaintiff, with whom he had former transactions, to join him as a partner in the performance of the part of the contract relating to the furring and lathing (excluding the plastering). Plaintiff

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accepted the offer and this portion of the contract was performed by them. The agreement between the parties was not reduced to writing, and after the work was finished a dispute arose between them as to the terms of the agreement relative to their joint adventure. Being unable to adjust their differences, the present action followed.

It was the claim of plaintiff at the trial that defendant agreed they should be paid a definite sum for the work, to wit: eighty-five cents a square yard. Defendant, on the other hand, claimed that no specified price was fixed for yardage; but that on the contrary the parties were merely substituted in the place of defendant in that portion of the contract relating to the furring and lathing, and were to receive therefor a fair and reasonable proportion of the total amount to be paid under the entire contract.

The trial court made an express finding in negation of plaintiff’s claim, and found in accordance with the claim of the defendant, its finding in this latter respect being as follows: “'That said plaintiff and defendant were to receive for said furring and lathing work a fair and reasonable proportion of the contract price provided for in said contract awarded to defendant for the plastering, furring and lathing of said building, subject to additions and deductions ; that the fair and reasonable cost of the labor and of the materials required in performing said furring and lathing work was to be deducted therefrom; and that the balance remaining as profits should be divided equally between said plaintiff and defendant. That said plaintiff and defendant undertook said furring and lathing work as a joint venture.” It further found that the total amount of fm> ring and lathing done was 17,648 square yards and that “the fair and reasonable proportion of the contract price to be allowed for furring and lathing under the contract awarded to defendant” was $13,629, after allowing for all additions and deductions; that the sum of $11,619.92 was expended by the parties in performing the work, leaving a net profit of $2,009.08 to be divided between the parties, or the sum of $1,004.54 for each; that appellant had already been paid the sum of $862.04 and that consequently there was a balance due him of $142.50, for which amount he was given judgment. Being dissatisfied with the amount awarded he has taken this appeal.