The parties to this action entered upon a joint adventure in relation to a single transaction. Their agreement was to purchase two cranes that were offered for sale by the government, and to sell the same and to divide the net profits, fifty per cent to the plaintiff and twenty-five per cent to each of the defendants. These cranes were afterwards sold to the Edison Electric Company by a contract which provided not only for their purchase, but for the erection complete at the plant of the Edison Electric Company. For this the Edison Electric Company was to pay to the joint adventurers $82,200. After the making of this agreement with the Edison Electric Company there was $50,000 paid. This $50,000 was divided between the parties, the commissions first having been deducted, the plaintiff receiving fifty per cent and the defendants each receiving twenty-five per cent of the net amount. Thereafter the joint adventurers made a written agreement between themselves, wherein it was provided that the defendants were to remove the cranes and erect them at the Edison plant and from the remaining $32,000 unpaid $12,200 was to be paid to the defendants and the balance, being $20,000, was to be divided, fifty per cent to the plaintiff and twenty-five per cent to each of the defendants. In this contract no provision was made for any further deduction for expenses than had been made upon the payment of the $50,000. The plaintiff has sued upon this contract, having shown that the defendants received the full amount of $32,200. The defendants in their answer allege that there has been no accounting between the parties and that there are certain expenses incurred by the defendants which should first be deducted from the $20,000, and that the plaintiff was not to receive fifty per cent of the $20,000 as was explicitly provided in this second contract between the parties, but was only to receive fifty per cent of such an amount after the deduction of the expenses. Under its answer the defendants sought to prove various expenses incurred both for commissions and for the supplying of parts which were found to be missing when they came to erect the cranes upon the plaintiff’s property and to prove conversations between the parties in reference to those expenses. The trial court held that the second contract between the parties controlled and as long as *288under that contract the defendants agreed in explicit terms that the plaintiff was to receive fifty per cent of the $20,000, that should be paid upon the final completion of the work, that the defendants were bound by the terms of the contract and could not show that any deduction should be made therefrom by reason of expenses incurred. The trial judge thereupon directed a verdict for the plaintiff.
The difference in the conclusions reached by Mr. Justice Page and myself is solely as to the question whether the complaint should be dismissed or as to whether there should be a new trial. His position as I read it is that because this was in relation to a partnership matter, plaintiff cannot bring this legal action against the defendants, but must proceed for a dissolution and an accounting. My position is that this was a partnership in relation to a single transaction — the purchase and sale of some cranes which were offered for sale by the government; that a specified price was to be paid for these cranes when erected; that the agreement upon which suit is here brought is an agreement as to the final distribution of the moneys that remained to be paid for the cranes from the Brooklyn Edison Company and constitutes prima facie an account stated of the partnership transactions. At the time of the execution of the instrument in suit some moneys had already been paid to these parties and had been divided between them after the deduction of certain expenses. This agreement provides that the erection of these cranes for the Edison Company shall be done by two of the partners, for which they were to be allowed a certain sum from the moneys remaining unpaid. After the payment of this certain sum all the balance of the moneys due upon the sale of these cranes shall be divided, fifty per cent to the plaintiff and fifty per cent to the defendants. This paper, therefore, constitutes prima facie an account stated between these partners as to the single transaction which was the matter of the partnership account, and an action at law may, therefore, be brought thereupon.
In Lindley on Partnership (8th Eng. ed. p. 591) it is stated: “To an action for account of partnership dealings and transactions an account thereof already stated and settled between the parties affords a good defense.” This is only a reiteration of the accepted proposition that the parties may settle between *289themselves without going to court, and if the amount due be put in the form of a written contract, a suit at law may be brought thereupon. The fact that the trial judge granted the motion of the plaintiff for a directed verdict, after a motion had been made by the defendant for a directed verdict without request to go to the jury upon any question of fact, is a determination by him of the question of fact that an account has here been stated. The items of an account need not be gone over in detail. They may be “ jumped ” and an amount due agreed upon. How then upon that determination we can hold, as a matter of law, this did not represent an account stated and dismiss the complaint,' I am unable to see. It is true that the defendants may show that it was not in fact an account stated, that is, that there were errors of fact and law in the failure to provide therein for the payment of further expenses which is claimed by the defendants should first come out of these moneys paid by the Edison Company before distribution. Evidence was offered to prove this contention, but was rejected. We think this evidence should have been admitted and the defendants should have been allowed to show that there was error of fact which vitiated this paper as an account stated, and for the rejection of this evidence I think there should be a new trial.
Judgment and order reversed, with costs, and complaint dismissed, with costs.