May v. Hettrick Bros. , 167 N.Y.S. 966 ( 1917 )

Scott, J. (dissenting):

I dissent because I do not consider that any partnership or joint adventure was shown between plaintiff’s assignor and defendant. They were not to share profits or losses. Plaintiff’s assignor seeing an opportunity to sell a quantity of tents to the Serbian government, and having no facilities for manufacturing such tents itself, sought to obtain from defendant a figure at which the latter would agree to manufacture the tents as subcontractor. This was in order to enable plaintiff’s assignor to fix a price for the delivery of the tents to the Serbian government so that it would be assured of a profit. In this profit defendant was to have no share. It was to manufacture the tents at a fixed price which it was to receive in any event, quite irrespective of the profit, if any, plaintiff’s assignor might make. I can see none of the elements of a partnership or joint adventure, in this arrangement. The defendant’s action, as shown by the evidence, was scarcely such as can be considered strictly honorable, but “ neither courts of equity or law sit to enforce mere moral obligations.” (Wood v. Rabe, 96 N. Y. 414, 421.) Therefore, no case was made for an accounting in equity.

Dowling, J., concurred.

Interlocutory judgment affirmed, with costs.