State Bank v. Napier

HARDIN, P. J. On the 12th day of April, 1892, the parties entered into a written agreement, which is set out in the pleadings. In that agreement the defendants agreed to transfer to the plaintiff all their business, with substantially all the assets belonging thereto. In consideration of such transfer the plaintiff agreed to assume, become responsible for, and pay upon demand, all the debts and obligations then owing by the defendants’ said firm, as shown upon its books at the close of business on the 11th day of April, 1892. It is found by the trial judge in the fourth finding, viz.: “That all the certificates of deposit mentioned in Schedule B of the complaint were duly issued by the defendants’ firm before the execution of said contract; that the same were all shown by the books of said firm at the close of business on the 11th day of April, 1892; that said certificates then aggregated the sum of $39,369.51, and they were all paid by the plaintiff at the times stated, respectively, in said Schedule B.” It is found expressly as a fact, and the evidence warrants the finding: “That the defendants did not make any fraudulent statements or representations to the plaintiff as to said certificates of deposit or their aggregate amount, and there was no mistake on the part of either party as to the terms of said written agreement.” The language found in the agreement executed by the parties is broad and comprehensive. It is, viz.: “That the party of the second part agrees to assume, become responsible for, and pay upon demand, all the debts and obligations now owing by the banking firm of Adams, Weed & Co., as shown by the books of said firm at the close of business on the 11th day of April, 1892.” The words are very comprehensive. They contain no exception or limitation. They are not restricted to any particular book, or particular statement, or “Daily Brief.” If the plaintiff had desired to limit or restrict its obligation in the assumption of the debts of the debtors, it might have specified that the obligations were restricted to those that were mentioned in the Daily Brief. They omitted to have any such words inserted in the agreement. The subsequent language of the contract favors the construction which we have intimated. Near the close of the contract we find the following language: “It is further agreed that the parties of the first part agree to pay to the party of the second part all the interest which shall have accrued to this date upon the interest-bearing certificates of deposit issued by the parties of the first part, and now outstanding at this date, or as shown by their books at the close of business on April 11, 1892.” [781] The trial court seems to have followed the literal language of the agreement, and has therefore found that the payments made by the plaintiff are the payments which it stipulated to make. Plaintiff is not entitled at this stage of the action to insist upon a reformation of the contract. Green v. Smith, 160 N. Y. 541, 55 N. E. 210. It seems that the books which had theretofore been kept by the defendants’ firm, on which all of the certificates of deposit were correctly shown, were passed into the hands of the plaintiff at or about the time of the consummation of the contract, and have been in the, exclusive possession of the plaintiff ever since the making of the agreement. As those books showed the certificates which the plaintiff has paid, we think it has done no more than to carry out literally the agreement which it undertook with the defendants. If the foregoing views are correct, it follows that the decision at the trial term was correct, and that the judgment entered thereon should be affirmed. Judgment affirmed, with costs. ADAMS and McLENNAN, JJ., concur. SMITH, J., dissents, in opinion. SPRING, J., not sitting.