This appears to me to be a very simple case, and was properly disposed of at the Special Term. The demurrer is founded on a misconception or perversion of the allegations of the complaint. When fairly construed, the complaint contains no averment that the defendant had received certain sums of money on account ofhis interest in the contract as distinguished and separate from the interest of the plaintiff therein, and thereupon setting up a claim to the half to which defendant was entitled, and not his own. This would be to make the claim presented by the complaint not only unreasonable, but absurd, and we are not to give a construction to language susceptible of another and a reasonable interpretation, which could lead to such a result. When, therefore, the complaint alleges, that the defendant received certain sums of money paid on account of his right, title and interest in and to the contract therein set forth, it manifestly refers to the whole contract, and not to a partial interest therein, and this construction is affirmed, and made entirely clear by the subsequent averment, that the plaintiff was entitled to have and receive from the defendant one-half of the sums so received by him.
The statement of the case is this: The plaintiff owned one-half of the defendant's interest in the contract, which he had acquired by assignment from Davis, to whom the defendant had assigned one-half of his interest. On account of defendant's interest, as distinguished from that of the other parties to the contract, Weed and others, defendant had received certain sums of money, all of which, by the way, had been received before he assigned to Davis; and the one-half of these moneys, which is precisely the contract the defendant had *Page 440 assigned to Davis, and Davis to the plaintiff, the defendant claims to recover in the complaint.
There is no element of partnership here, in such a sense as requires an accounting and balance to be struck, or an express agreement to pay. The defendant stands precisely in the position of one of two joint holders of a specific demand or chose in action, who receives money in the interest and for the benefit of both, and becomes liable by a promise implied by law to pay over the share to which the other is entitled.
The judgment should be affirmed, and be absolute without allowing to defendant the privilege which was accorded to him at the Special Term, to answer upon payment of costs.
Judgment affirmed. *Page 441