Schiffer v. Lauterbach

Williams, J.: We see no reason to disagree with the. learned trial judge as to the conclusion arrived at by him that the Agreement “ C ” was never made, executed or delivered, and that no agreement to the effect therein contained was actually made and perfected betwe'en the plaintiffs and any of the defendants. It is true that Agreement “ 0 ” was negotiated by two of the defendants, and as formulated was satisfactory to them, but it seems quite clear that these two defendants never intended to make “ C ” a binding agreement by themselves, and without the concurrence of the other defendants^ or to make any parol agreement to the same effect, or to make any parol agreement at all,, and the plaintiffs .did not suppose any such intention on the part of these two defendants ever existed. The intention of both the plaintiffs and these two defendants was that the agreer ment when made and perfected at all should be in writing, and they finally concurred in Agreement “ 0 ” as correctly expressing the agreement which the four parties desired should be made, executed and delivered. It could not be said fairly, under the evidence, that there was any understanding by any of the four parties that an [229] agreement was to be regarded as made or perfected until all the four defendants should have concurred in signing and delivering the Agreement “ C.” It is quite apparent that the two defendants who negotiated and assisted in formulating Agreement “ C ” were unwilling to make any agreement by themselves which the other defendants would not concur in. These two defendants were careful not only to require the other two defendants to join in the agreement, but also to have the approval thereof of the beneficiaries under the will of their testator, and to this end application was made to the court in hehalf of one of the beneficiaries, who was of unsound mind, for leave to give such approval and ratify such agreement, which the court granted. An examination. of the evidence given by the several witnesses, and the correspondence relating to the matter which appears in the record, leaves no doubt in our minds as to the correctness of the decision by the trial court, that the negotiations between the two plaintiffs aiid the two defendants never ripened into a perfected agreement. . Certainly the other two defendants never concurred in any such agreement by parol or otherwise, and never signed the Agreement “ C,” and this agreement was concededly never delivered. Upon this branch of the case we fully concur with the decision of the trial court. We cannot, however, agree with the conclusion arrived at by the trial court that the whole complaint should he dismissed upon the merits, upon the theory that the action was one to compel specific performance of the Agreement “ C ” alone, and that, failing to establish the right to that relief, the court could not consider, investigate or pass upon the other relief asked for by the plaintiffs, the settlement of the rights of the parties, under subdivision 15 of the original partnership Agreement “A,” and the enforcement of the performance thereof by. the defendants. This question was fairly presented on the trial, and it seems to us that the plaintiffs’ position with reference to it is unanswerable. . At the close of the plaintiffs’ evidence the defendants asked the court to compel the plaintiffs to state whether they relied upon more than one cause of action, and if so that they be compelled to elect upon which one they relied and asked for judgment. The plaintiffs stated that they relied upon the facts alleged in the complaint, and claimed the right to either form of relief asked for in [230] the complaint which the court should hold the facts proved entitled them to. They claimed the right to have specific performance of the Agreement “ C,” or, failing in that, then specific performance of subdivision 15 of Agreement “ A.” The court, however, held that but one cause of action was stated and that was to enforce the Agreer ment “ C,” and plaintiffs duly excepted. Thereupon the evidence on the part of the defendants was given, and the decision of the court was made which dismissed the complaint on the merits on the grounds solely that the Agreement “ C ” was never made, executed or delivered, and if so made would not be enforced in equity.' The decision was' excepted to by the plaintiffs as a whole, and as to each part separately. The complaint, after setting forth Agreements “ A ” and “ B,” alleged the notice by defendants under subdivision 14. of Agreement “ A ” to terminate the co-partnership at the end of the first five years, and notice by plaintiffs that under subdivision 15 of Agreement “A” they claimed the right to purchase the interest of the defendants’ testator in the business and assets of the firm; that thereupon an attempt was made to ascertain and agree upon the amount to be secured and paid by plaintiffs for such interest; that the plaintiffs claimed the amount as ascertained' pursuant to subdivision 15 of Agreement “ A,” was $609,000, and that the plaintiffs were ready and willing to pay this amount of money, and give the security therein provided for, but the defendants claimed that the amount to be so secured and paid should be much larger than $609,000. It was further alleged that the defendants expressed dissatisfaction as to the terms of payment, the rate, of. interest and the security provided for by subdivision 15 of Agreement “ A,” and desired to have such terms modified; and said that if such change could be made, they would consent to a reduction of the amount which they claimed the purchase price of the interest really' Was or should, be; and that thereupon the negotiations followed which the plaintiffs claimed! matured into the Agreement “ O.” The complaint also alleged the refusal by defendants to carry out the terms of either Agreement “ C,” or of subdivision 15 of Agreement “ A.” The relief aslced for was the enforcement of Agree-. meiit “C,” or of subdivision 15 of Agreement “A.” We are. not called upon to determine whether, upon the evidence given at the trial, relief should have been afforded to the plaintiffs under sub [231] division 15 of Agreement “ A,” because, while the case was being tried and before all the evidence was taken, the court held that under the pleadings no such relief could be had, and the only question, therefore, is whether the court was right in giving such effect to the pleadings. If it was not, then the case should go back for a new trial, and.the court should take all the evidence bearing upon this branch of the case, and pass upon the question upon its merits. Moreover, no question was raised that the proofs were insufficient to authorize the court to afford such relief. The only question raised was whether the relief could be had under the pleadings, and the dismissal of the complaint was put solely on this ground of defective pleadings. By virtue of the defendants’ election to discontinue the co-partnership at the end of the first five years, and the plaintiffs’ election to purchase the interest of defendants’ testatator, the plaintiffs were entitled to a transfer of such interest upon giving the security and paying the amount of the purchase price to be determined under the provisions of subdivision 15 of Agreement “ A.” A controversy having arisen as to what the amount of such purchase price should be computed and fixed at under the terms of such subdivision 15,. it was competent for the parties to adjust and compromise their differences. And then, if they did not, or could not, perfect such agreement and compromise, and the defendants refused to carry out the provisions of subdivision 15 of Agreement “ A,” because they could not agree as to the purchase price, it was proper for plaintiffs to appeal to the court and ask it to settle the rights of the parties, and compel a compliance with the provisions of the agreement. Such was the position of the case when the court found that Agreement “ O ” had not been made, executed or delivered, and that no agreement by parol to the like effect had been made. Certainly 'the plaintiffs were entitled to have the other branch of the case considered by the court and the merits relating thereto passed upon. It is hardly necessary to cite any authority for this proposition. The following cases may be referred to, however, as supporting the view taken by us: Bennet v. Vade (2 Atk. 324); Colton v. Ross (2 Paige, 396); Lloyd v. Brewster (4 id. 537); New York Ice Co. v. North Western Ins. Co. (23 N. Y. 537); Barlow v. Scott (24 id. 40); Sternberger v. McGovern (56 id. 12, 21); Hall v. Hall (38 How. Pr. 97). [232] . Our conclusion is that the judgment should be reversed and anew trial ordered, with costs to abide event. ■ Van Brunt, P. J., Rumsey, Patterson and Ingraham,. JJ., concurred. Judgment reversed, new trial ordered, costs to appellants to abide event.