This agreement was annexed to, and made part of, the complaint, which alleged that plaintiff had procured a number of subscriptions to said work, and that a certain amount of commissions was due and unpaid thereon; that defendant had received a number of subscriptions at his store upon which a certain amount of commissions was due and unpaid, and that H. had procured a number of subscriptions upon which plaintiff's commissions were unpaid. Defendant demurred to several of the subdivisions of the com ceive $50 for each subscriber obtained by defendant at his store, payable in three equal installments as aforesaid. The complaint recited said agreement in full, and alleged that plaintiff had procured a number of subscriptions upon which a certain sum as commissions was due and unpaid, and that defendant had received a number of subscriptions at his store upon which a certain amount of commissions was due and unpaid. There was no allegation that the subscribers obtained by plaintiff had taken and paid for the complete work, or that the first, sixth, or eleventh parts of the publication had been delivered to any subscriber, nor was there any general allegation that the conditions upon which payment of the commissions was to be Imade had been fulfilled. Held, That the complaint did not state a cause of plaint upon the ground that they action. Appeal from interlocutory judgment overruling demurrer to several causes of action stated in the complaint. Plaintiff and defendant entered into an agreement whereby plaintiff agreed to solicit subscriptions to a publication issued by defendant, and was to receive in compensation for the same the sum of $100 for each subscriber who might take and pay for the complete work, said $100 to be paid in three equal installments, the first payment to be made upon the delivery of the first part of the publication, the second payment upon the delivery of the sixth part, and the third payment upon the delivery of the eleventh part. Plaintiff was also to receive $50 for each subscriber obtained by defendant at his store, payable in like manner, and was to receive $40 for each subscription taken by one H., no method of payment of the said $10 being specified. did not state facts sufficient to Held, That plaintiff had failed to allege that the persons whose subscriptions were stated to have been obtained by him did in fact take and pay for the complete work published by defendant, and by the agreement defendant undertook to pay the stipulated amount only for subscriptions made by subscribers who might take and pay for the work. That plaintiff was bound to show by his complaint, before a legal right could be presented for the recovery of this part of the demand, that the agreement upon which his right to it depended had been performed, and that this he had failed to do. That, in addition to this defect, it had not been made to appear, either expressly or inferentially by the complaint, that any part of the publication was at any time delivered to or taken by the subscribers, and by the agreement defendant bound himself only to pay as the work in fact should be delivered, and as no delivery of either part of the work had been alleged the complaint failed to show that any part of the amount to be paid to plaintiff for the subscriptions had become due at the time when the action was commenced. That, as there was no condition annexed to the agreement to pay plaintiff $40 for each subscription obtained by H., the complaint stated a cause of action in regard to that claim. Judgment modified so far as to sustain the demurrer to the first, third, fourth and fifth causes of action contained in the complaint, and as so modified affirmed. Opinion by Daniels, J.; Brady J., concurs. PROMISE. PARTIES. N. Y. SUPREME COURT. GENERAL Decided Nov., 1886. W. V. and V. B. conveyed to R. C. real and personal property, he to pay certain of their debts. R. C. died without paying the debts and J. C. was appointed administrator. Then an agreement was made between J. C., administrator, and defendant as executor by which the latter agreed to assume and pay the debts within nine months. Within this time the widow and heirs of R. C., except a minor, conveyed the real estate to defendant as executor of P. S. in consideration of a sum of money and of a bond, and they covenanted that the minor should convey. The same day defendant executed a bond which recited the debts specifically and it covenanted that he would pay the debts in four months and save the widow and heirs harmless. It also stated that the obligor agreed with the owners of said claims to pay what was justly due them. The minor subsequently conveyed. Upon defendant's refusal to pay a creditor named in the bond the latter sued. Held, That, although not a party to the agreement, he could recover. In 1882 W. and B. Van Vranken conveyed to R. Clements real and personal property, in consideration of which the latter agreed to pay certain indebtedness of the former. R. Clements died and J. Clements was appointed his administrator. Subsequently an agreement was made between John Clements, administrator, and defendant Skinner, described as executor but not executor of any particular person, reciting the above conveyance and agreement to pay the debts of the Van Vrankens and their assumption by R. Clements and the intention of the parties to transfer all the property to Skinner as executor upon his assuming and paying the debts; then containing an agreement that John Clements would convey or cause to be conveyed said property, and that Skinner would pay said debts and this within nine months. Some personal property was transferred to Skinner about this time and he paid some debts. Within nine months the widow and heirs (except a minor) conveyed said real estate to Skinner as executor of Peter Skinner in consideration of $11,000 and a bond executed by him, and they convenanted that the minor should convey. The same day Skinner executed the bond, which ran to John Clements as administrator of Robert and as attorney in fact of his widow and heirs at law. This bond recited the debts specifically, and the fact that the widow and heirs had conveyed certain property to the obligor upon his agreement to pay the debts and save them harmless. The condition was to pay the debts within four months and to save the widow and heirs harmless. The bond continued "and for the consideration aforesaid the party of the first part agrees to and with the owners of said claims to pay all that is justly due them not exceeding the aforesaid amount." The minor subsequently conveyed. This action is by a creditor named in the bond to recover his claim. Plaintiff had judgment. was Jacob W. Clute, for applt. L'Amoreaux & Dake, for respts. Held, That the creditor could recover. Some stress is laid upon the fact that the conveyance was to defendant as executor. We think this immaterial. He chose to take the conveyance in that way but the consideration sufficient. The principal question is whether the creditor can recover on an agreement to which he was not an actual party. The position of the parties was this: The widow and heirs of R. Clements held the property. R. Clements was personally bound to pay the debts. At his death his property was bound to pay his own debts and they could have been enforced against it, whether they were a strict lien or not. The widow and heirs were not personally liable for them. They then transfer the property to defendant, who for ample consideration agrees to pay them himself. But it is said that, under Vrooman v. Turner, 68 N. Y., 280, as the widow and heirs were not personally liable, defendant is not by his bond liable to the creditors. In Vrooman v. Turner it is said that a recovery upon such a promise depends, first, on the intent of the promise to secure some benefit to the third party; and second, on some privity between the promisee and the third party and on some obligation owing from the former to the latter. There can be no doubt about the intent here. We think there was also privity. As administrator and widow and heirs of R. Clements the parties named in this bond were in privity with his creditors, and although not a personal there was yet some obligation resting upon them in respect to creditors. In default of sufficient personal property it was the duty of the administrator to have the real estate sold to pay them, and the heirs might be sued in respect to land of the deceased, Code, § 1843. Thus heirs do not stand as the owner of the equity of redemption does, who is not liable for the mortgage debt. When then, in performance of that obligation, the heirs have provided for payment of the debts, it is equitable that the creditors should have the benefit of that agreement although not actual parties to it. Judgment affirmed. Opinion by Learned P.J.; Bockes and Landon JJ., concur. TRUSTEES. ACCOUNTING. N. Y. SURROGATES COURT. In re estate of Samuel Willetts, deceased. Decided Dec. 20, 1886. Upon an accounting before the surrogate of the trustees of a fund provided by the testator's will and set apart to trustees to pay annuities, the cestuis que trustent objected that the fund held was larger than was necessary to provide for the annuities, and asked for a reference to determine what portion of the trust estate may be returned to the residuary estate without jeopardizing the claims of annuitants. Held, That this is a matter which cannot be properly considered in the accounting proceeding now before the court. It does not concern the correct shall on the decease of the annui. tants, as they shall respectively die, be divided among the grandchildren of the testator who shall be living at the time of the death of the annuitants respectively; and that for the purpose of this trust the trustees shall only retain a sum "sufficient to produce the required amount for the remaining annuitants." To the account now before the surrogate several objections have been filed in behalf of the residuary cestuis que trustent. None of these objections, however, are now insisted upon except this: It is claimed that the income yielded ness of the account for whose judicial by the $400,000 fund is much in settlement and determination this proceeding was brought. The objection does not point out any error in the account nor does it seek to charge the trustees with amounts claimed to have been omitted by them, nor to falsify items with which they ask to be credited. The relief sought should be sought in a proper proceeding instituted for that express purpose. excess of the sum necessary to feed the annuities, and that a portion of that fund, therefore, should be returned to the residuary estate. Counsel for the objectors asks that a reference be ordered to ascertain what portion may be thus returned without jeopard Accounting of trustees of a funding the claims of the annuitants. of $100,000 set apart under the provisions of testator's will to provide for certain annuities. Testator's executors were directed by a decree entered in April, 1885, whereby their accounts were settled and determined, to "pay to themselves as trustees the sum of $400,000 as a fund to produce the several annuities provided for in said will." This direction they obeyed on May 1, 1885, and on January 30 of the present year they filed their account as trustees of the fund in question. The will provides that the fund, and the unappropriated income thereof, Vol. 25-No. 7. Wilson M. Powell, for trustees. Geo. H. Forster, for contestant. Held, That this is a matter which cannot, it seems to me, be properly considered in the proceeding now before the court. It does not concern the correctness of the account for whose judicial settlement and determination this proceeding was brought. The objection in question does not point out any error in that account. It neither seeks to charge the trustees with amounts claimed to have been omitted by them nor to falsify items with which they ask to be credited. discharge by discharge by defendant. The business consisted largely of sales of organs and pianos on the installment plan, upon monthly payments, the title remaining in the vendor until full payment of the purchase price, and when plaintiff was discharged several thousand dollars remained unpaid on such installments. The referee included the sums so unpaid in fixing the amount of net profits. Appellant contends that in so doing the referee erred. Geo. H. Humphrey, for applt. Roberts, Alexander & Messer, for respt. Hiram V. Eldredge, respt., v. evidently contemplated that plain George D. Smith, applt. Decided Oct., 1886. Construing the terms of a contract for personal services in a mercantile business where the pay was to consist of a certain proportion of the "net profits" of the business. tiff should be entitled to full compensation for his services at the expiration of the term agreed upon. And as his compensation was to be one-third of the entire proceeds of the business after deducting its entire cost and expense, all Appeal from judgment on ref- the avails of the business as they eree's report. Action to recover for services rendered by plaintiff to defendant under a special contract in the business of selling musical instruments. By the contract, defendant agreed to pay plaintiff for his services a sum "equal to onethird of the net profits resulting from the business, * * * meaning by the term 'net profits' * * one-third of the entire proceeds of the business * after deducting the entire cost and expense of said business." The referee held plaintiff entitled to judgment for a certain balance with interest from the date of his * * existed at the expiration of his term were to be taken into account in ascertaining the amount of net proceeds. That method of computation would include amounts due on leases and conditional contracts of sale as well as cash realized. This interpretation of the language of the contract is supported by extraneous circumstances. It is evident that both parties to the contract contemplated that sales might be made upon the installment plan. The conditional contracts made by plaintiff were accepted by defendant and recognized and treated by him as part of the proceeds of the business. |