Henry A. Gouge, Appellant, v. George Roberts et al., Respondents

Henry A. Gouge, Appellant, v. George Roberts et al., Respondents. (Submitted May 29, 1873; decided June 10, 1873.) It is not competent upon a question as to the value of one article or the cost of one structure to prove the cost of another article or structure, however close the two may resemble each other. This was an action against defendants as partners to recover the value of certain ice-houses, ventilators, etc., constructed by the plaintiffs for the proprietors of the Westminster Hotel, doing business under the firm name of Roberts & Palmer. The only questions litigated were as to whether Roberts was a member of the firm, and as to the value of the work and materials. The referee found that Roberts was not a member of the firm. Upon the appeal plaintiff claimed that he (Roberts) held himself out as a member, and contracted with plaintiff as such, and that he was therefore estopped from denying the fact. Held, that as the record did not show that this position was taken before the referee, and there being no request to find, and no finding of facts upon which the estoppel could be based, the court could not act upon the evidence and reverse upon facts not found. (See Walsh v. Powers, 43 N. Y., 23; Van SlyJce v. Hyatt, 46 id., 259.) •Upon the question of value, one Case, a butcher, was called as a witness for defendants, who testified that he had had an ice-house constructed, which he described. He was then asked, “ What did it cost to construct your ice-house ?” This was objected to; objection overruled. Plaintiff excepted, and witness testified as to the cost. Held, error; as it raised a collateral issue leading to a comparison between the different structures, and could not legitimately aid in determining the issue in the action. Joseph B. Flanders for the appellant. Benj. F. Russell for the respondents. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance as to defendant Roberts, and for reversal and new trial as to defendant Palmer. All concur. Judgment accordingly.