Jewett v. Brownell

Ingalls, J. The agreement between the parties, which is in writing, is set out in the complaint, and constitutes the basis of the plaintiff’s alleged cause of action. Such agreement obviously states so imperfectly the transact tian between the parties that it is-difficult to comprehend clearly their real intention in regard to the payment by the defendant of the 10 per cent., and the retention by the plaintiff of the 60 shares of stock. We infer that the parties made an exchange of stocks for some purpose which is not disclosed, and the plaintiff agreed not'to sell the 240 shares which he received from the defendant at a price below par within two years from the 1st day of January, 1882. The defendant transferred to the plaintiff 60 shares of the same stock, and the agreement provides in relation thereto as follows: “To be held by the said Jewett as collateral security for the payment of a certain sum of money upon the terms hereinafter set forth and declared in respect to the same, which said assignments and transfers said Jewett hereby accepts.” The certain sum of money doubtless refers to that which is provided for in the agreement, as follows: “Third. Said Jewett shall be entitled to receive at the expiration of said period of two years from the first day of January, 1882, a sum equal to ten per centum per annum upon the amount of the par value of such of said 240 shares as shall be from time to time held by the said Jewett; and if, upon the expiration of said period, the said Brownell shall not have paid to the said Jewett the said interest, then the said sixty shares shall become the absolute property of said Jewett.” The plaintiff states in the complaint that he did not within the prescribed period dispose of any part of the 240 shares of stock, and that he had fully and faithfully performed all the covenants and conditions in the said agreement on his part to be performed. The real question upon this appeal is whether the following provision of the agreement: “Third. Said Jewett shall be entitled to receive from said Brownell, at the expiration of said period of two years from said first day of January, A. D. 1882, a sum equal to ten per centum per annum upon the amount of the par value of such of said 240 shares as shall be from time to time held by the said Jewett; and if, upon the expiration of said period, the said Brownell shall not have paid to the said Jewett the said interest, then the said 60 shares shall [767] become the absolute property of said Jewett,”—considered in connection with the other provisions of the agreement,—raises such an implied obligation on the part of the defendant to pay the plaintiff a sum of money equal to 10 per cent, upon the par value of the 240 shares of stock held by the plaintiff as to constitute a cause of action upon which the plaintiff is entitled to recover in this action. In determining this question the entire agreement is to be considered, with the view to ascertain what was the real intention of the parties in regard to the transfer of the said 60 shares of stock, and the undertaking of the defendant to pay a sum equal to 10 per centum per annum upon the amount of the par value of such of said 240 sháres as should be from time to time held by the said Jewett. We are satisfied that it was not the intention of the parties to the agreement, nor is it imperative upon the court to hold, that by the terms of the agreement the defendant has absolutely declared himself indebted to the plaintiff m such a sense as that a promise to pay such money should be implied, and an obligation thereby created in favor of the plaintiff against the defendant. It is not even contended by the counsel for the plaintiff that the agreement contains an express promise by defendant to payany sum whatever, but that such a promise may properly be implied from the terms of the agreement which are as follows: “Said Jewett shall be entitled to receive from said Brownell, at the expiration of said period of two years from the first day of January, 1882, a sum of money, ” etc.; coupled with the further provision: “And if, upon the expiration of said period, the said Brownell shall not have paid to said Jewett, * * * then the said 60 shares shall become the absolute property of said Jewett.” AAe are convinced that the agreement, fairly construed, contains no such absolute declaration of indebtedness by the defendant to the plaintiff from which the law will imply a promise to pay the money claimed by the plaintiff. “Said Jefivett shall be entitled to receive from said Brownell a sum of money.” In what manner? According to the terms of the contract, and agreeably to the intention of the parties thereto. Hot absolutely upon a confessed indebtedness, which obviously was not contemplated by the parties. We think the arrangement was simply this: The plaintiff was not to sell the 240 shares of stock at less tho,n par within two years, and the defendant, to protect the plaintiff from loss to which he might be subjected by holding the stock, transferred to plaintiff the 60 shares, with the understanding that the defendant should be at liberty to redeem the same by paying the money specified in the contract, and, in case the money should not be paid, the plaintiff was to become the absolute owner of the stock. It became optional with the defendant to pay the money or forfeit the stock, and it seems that he chose the latter. The language employed in the contract declaring such forfeiture could not be more emphatic. “And if upon the expiration ef that period the said Brownell shall not have paid to said Jewett the said interest, then the said sixty shares shall become the absolute property of said Jewett.” Brownell has not paid, and Jewett retains the stock, and we discover nothing to indicate that Jewett proposes to relinquish the same. In his complaint he does not offer to return the stock to Brownell upon receiving the money claimed by him, nor does he allege therein a willingness to return the same to Brownell, as a part of the statement of his cause of action herein. AVe think the title to the 60 shares of stock became vested in the plaintiff absolutely. Bunacleugh v. Poolman, 3 Daly, 236; Langdon v. Buel, 9 Wend. 80. It would seem to be inequitable and unjust to allow the plaintiff, upon the facts stated in his complaint, to recover the money claimed by him, upon the theory of an implied promise to pay the money, without the allegation of an offer to return the stock upon such payment to the defendant. Wedo not intend to intimate that even with such additional allegation in the complaint a valid cause of action would be stated. The plaintiff in his complaint demanded judgment for §2,500, with interest from the 1st day of January, 1882. The par value of the stock transferred to the plaintiff amounts [768] to $3,000, and there is no allegation in the complaint that it is not worth such sn,m. We think the facts disclosed by the complaint negative the idea that the parties intended or understood that the defendant acknowledged an absolute indebtedness to the plaintiff upon which a recovery could be had as upon promise to pay money. In the absence of an express promise to pay, the declaration of indebtedness should be positive and unequivocal, to form the basis of an implied obligation, and we think this case falls far short of such a declaration. Culver v. Sisson, 3 N. Y. 264; Salisbury v. Philips, 10 Johns. 57; Turk v. Ridge, 41 N. Y. 201; Weed v. Covill, 14 Barb. 242; Suffield v. Baskervil, 2 Mod. 36; Coleman v. Van Rensselaer, 44 How. Pr. 368. The case which we are considering is, we think, distinguishable from that class of cases where there is to be found an express acknowledgment or declaration of indebtedness, as in Elder v. Rouse, 15 Wend. 218. The judgment should be reversed, with costs, and the demurrer interposed by the defendant sustained, with leave to the plaintiff to amend his complaint within 20 days, upon payment of costs to the defendant. Learned, P. J., concurs. Landon, J., dissents.