Winch v. Farmers' Loan & Trust Co.

BOOKSTAVER, J. The complaint relies, distinctively and unmistakably, upon the written contract exhibited upon its face, and attempts to make out a cause of action by placing a certain interpretation upon that contract, which interpretation is not, in my opinion, warranted by the language used. The defendants’ agreement was “to give said Winch five bonds of a first mortgage of said gas works or said company.” The words “said gas works or said company” clearly refer to a gas company “to be formed in Brooklyn or for operation in Brooklyn,” or to “a company already formed” to be operated in Brooklyn. The last clause of the contract, which mentions the “Equity Gas Company of Williamsburgh, Brooklyn,” is quite evidently for the purpose of characterizing the information to be given, and not to specify the company meant. If the intention had been to agree to give the plaintiff bonds of the Equity Company, it would have been easy to say so in so many words; but, instead of such direct and definite expression, the parties ex industria employ language which is indefinite and descriptive, and naturally so, because it is plain that their plans were at the time uncertain and contingent. It should be observed that the language is' very guarded, in that the defendants did not agree or undertake, but only proposed, to form or operate a gas company. The plaintiff’s compensation was to be in bonds of such company, unascertained at the time, when they should at last have formed or operated it. He should therefore allege that the defendants formed or operated a company of the kind described. I do not think that the complaint could be saved by parol proof upon the trial that the parties meant the Equity Company instead of one unascertained at the time. Such proof would be inadmissible as varying or contradicting the writing. Neither is there any room for the presumption, in support of the complaint, that other written evidence will be produced upon the trial. The pleader relies too distinctly and unmistakably upon the particular writing pleaded. In this respect the case differs from Iron Works v. Pemberton (Com. Pl. N. Y.) 27 N. Y. Supp. 931. There the allegation was that the consideration for the guaranty sued upon was the plaintiff’s agreement to renew certain promissory notes, and it was held that notwithstanding the fact that certain writings, which were pleaded as guaranties, failed to state any consideration, it would be presumed that other writings would be forthcoming upon the trial, and that those set forth should be disregarded as being a pleading of evidence, and therefore surplusage. Here the allegation is not that there was an agreement to give the 282 plaintiff bonds of the Equity Company, but that a certain writing set forth had that meaning. Upon the appeal in this case the attention of the general term was concentrated upon the refusal to allow any amendement to the complaint, which it held to be error (32 N. Y. Supp. 244); and, as leave was given to amend, it was not deemed necessary to discuss the question now raised. The demurrer should therefore be sustained, with leave to the plaintiff to amend, if so advised, upon the payment of costs of demurrer only.