Weber v. Columbia Amusement Co.

Laughlin, J.: This is an action to recover damages for the breach of a contract in writing made on the 14th day of May, 1910, between the defendant, a domestic corporation, as party of the first part, and the plaintiff and one Edward F. Rush, who, it is recited in the contract, comprised the firm of Weber & Rush, as parties of the second part. The contract further recites that the party of the first part was engaged in booking burlesque companies throughout the United States and Canada, and that the parties of the second part are the lessees of and control and manage [836] the Mohawk Theatre in the city of Schenectady, N. Y. The parties of the second part leased said theatre to the party of the first part for the period of five years from the commencement of the theatrical season of 1910-1911. It is alleged in the complaint that the plaintiff and Rush were copartners in business under the firm name and style of Weber & Rush, and that on the 25th day of January, 1911, the copartnership was dissolved and Rush duly assigned, transferred and set over unto the plaintiff all his right, title and interest in and to said contract; that the plaintiff and Rush as such copartners made said contract with the defendant and duly performed the same on their part, but that the defendant, without just cause, assumed to terminate the contract on the 10th day of June, 1912, and refused to perform the same, to the damage of the plaintiff in the sum of $100,000. The defendant pleaded, among other things, a defect of parties plaintiff in that one Dinkins, who was still living, was a member of the firm of Weber & Rush, and was not joined as a party. The defendant showed by the cross-examination of the plaintiff and by the lease from the owner of the Mohawk Theatre, that said lease was made to “ L. Lawrence Weber and Edward F. Rush, * * * comprising the firm of Weber & Rush and Thomas W. Dinkins; ” that on the twentieth day of July thereafter Weber, Rush and Dinkins made an agreement, in writing, by which they became copartners from that elate and during the remainder of the term of said five-year lease of the Mohawk Theatre, and it was therein provided that Weber and Rush should jointly contribute seventy-five per cent of the expenses of the copartnership and Dinkins the remaining twenty-five per cent, and that all profits and losses should be proportioned in the same manner. During the trial, and before the plaintiff completed his proof, counsel for the defendant raised the point that the action could not be maintained without the joinder of Dinkins as a party plaintiff, and the court thereupon so ruled and directed the dismissal. It is quite clear that the court erred in so ruling. The defendant bound itself to Weber and Rush, and, therefore, it cannot defend an action, brought in their right, on the [837] theory that by some other agreement to which the defendant was not a party and in which it was in no manner interested, a third party is interested with the plaintiff in the subject-matter of the action, for by the express terms of the contract the plaintiff and his assignor only were entitled to have it performed, and if another was interested with them they certainly could maintain the action as trustees of an express trust, and a settlement with or recovery by them would discharge the obligation and they would be accountable to those interested with them. (Considerant v. Brisbane, 22 N. Y. 389; Clarkson v. Carter, 3 Cow. 84; Mutual Life Ins. Co. v. Nicholas, 144 App. Div. 95; Howe v. Savory, 49 Barb. 403; Meinhardt v. Excelsior Brewing Co., 98 App. Div. 308; Davidge v. Guardian Trust Co., 136 id. 78; reversed on other grounds, 203 N. Y. 331; Code Civ. Proc. § 449.) If (others were interested in this contract it was not necessary for the plaintiff expressly to allege that he sues as trustee of an express trust, for, since he and Bush made the contract, that would establish their right to maintain the action as such trustees, which distinguishes the case from Natter v. Blanchard Co. (153 App. Div. 814), on which counsel for respondent appears to rely. It was evidently intended to execute the contract under seal, for in the witness clause it is recited that the defendant has caused “ its corporate seal to be hereto affixed,” and that “the second parties have hereunto set their hands and seals.” The contract was executed for the defendant by one Mack, its president, and it was signed by the parties of the second part in the firm name only. The firm signature was affixed opposite two statutory substitutes for seals, which were typewritten. If, as is quite likely, this makes the lease a sealed instrument (G. V. B. Mining Co. v. First National Bank of Hailey, 95 Fed. Rep. 23; Rusling v. Union Pipe & Construction Co., 5 App. Div. 448; affd., 158 N. Y. 737), the action could be maintained only in the right of the parties who are, by express terms, parties thereto. (Henricus v. Englert, 137 N. Y. 488; Porter v. Baldwin, 139 App. Div. 278. See, also, Spencer v. Huntington, 100 App. Div. 463; affd., 183 N. Y. 506.) But in the view we take of the other point it is unnecessary to decide whether or not it is to be deemed a sealed instrument. [838] It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. Judgment reversed and new trial granted, with costs to appellant to abide event. Order to be settled on notice.