We think the complaint was sufficient to justify the recovery in this action. Oonaughty v. Nichols, 42 N. Y. 83. The evidence given on the trial discloses that the defendant, who was the owner of a cheese factory, and a cheese-maker, agreed with the plaintiff and several other of his neighbors that he would receive the milk that should be delivered to him by each', and for the price of $1.10 per hundred would manufacture it into cheese, fur*738nisli everything necessary for that purpose, (except each should furnish such rennets as he should have,) take care of it until ready for market, then sell it, receive the money, and, after deducting the expense of making, figure up and determine the amount that was due to each for the milk furnished by him, and pay him that amount. We think the contract made was between the defendant and each of his patrons severally, and the court committed no error in so instructing the jury.
If we were to assume (which we do not decide) that, after the cheese was manufactured, and before the sale, the parties furnishing the milk from which it was manufactured were tenants in common of the cheese, it does not follow that after it was sold and converted into money, and the share of each determined by the defendant, the other patrons of the factory had any interest in the portion belonging to the plaintiff. The sale of the cheese and the separation of the fund derived therefrom were a complete termination of any tenancy in cbmmon that might have existed between such patrons. When this was done, it was the defendant’s duty to pay to the plaintiff his share. That he refused to do. By this action he was compelled to perform the agreement he made with the plaintiff. The judgment in this case is both equitable and just, and we have found no sufficient reason for overthrowing it.
The defendant’s counter-claim, based upon the plaintiff’s refusal to deliver his milk for the entire season, was disposed of by the trial judge as favorably to the defendant as he had a right to ask. It was submitted to the jury with instructions that, if the contract was for the season, the defendant was entitled to recover any damages he sustained, unless the plaintiff was justified in refusing to deliver his milk because it was not correctly weighed. The proof was sufficient to justify the jury in finding either that there was no contract for the season, or that the milk was not correctly weighed. In either event the defendant was not entitled to recover damages for the plaintiff’s refusal to deliver his milk for the remainder of the season.
The proof also shows that the plaintiff offered to draw his portion of the cheese, and that he delivered to the defendant all the rennets that he had that season, and hence the defendant was entitled to no deduction upon either of those grounds. We have examined the various rulings of the trial court on the reception and rejection of evidence, but have found no error prejudicial to the defendant, or which would justify a reversal. We think the judgment was right, and should be affirmed. Judgment and order affirmed, with costs.
All concur.