192 A.D. 594 | N.Y. App. Div. | 1920
This action is to recover damages for breach of a written contract entered into between the plaintiff, Gabriel A. Bobrick, and the defendant, David Mackenzie, on August 6, 1914. The contract recites that the said Mackenzie, party of the first part, was desirous of acquiring certain patent rights for the liquification of gases, air, etc., and their distillation into their constituent parts, viz., oxygen, nitrogen, etc., and that the said party of the first part desired to enter into the business of manufacturing liquid air, oxygen, nitrogen, cyanamide and the products of each of the above gases and their constituent parts. The contract further recites that Bobrick, party of the second part, was the inventor of certain patents and processes for the liquification of gases and the redistillation of liquid air into its constituent parts, and of certain machinery and apparatus for the manufacture and utilization of liquid air, oxygen, nitrogen and their products covered by four patents issued to him during the years 1909 and 1910, which patents, at the time of the making of the contract, were therein stated to be owned by the United States Liquid Air and Oxygen Company of Los Angeles, Cal., or its successors or assigns. By the terms of the contract it was mutually agreed by the parties that the said Mackenzie appointed Bobrick as his lawful agent to go to Los Angeles, and purchase from the owner at a price not to exceed $5,000 all of the patents above referred to and all other patents assigned to said United States Liquid Air and Oxygen Company by the said Bobrick. It was further provided by the contract that the party of the first part should furnish to the party of the second part a sum of money not to exceed $5,000 for the purchase of said patents, with the understanding that Bobrick was to purchase the same for the least sum of money possible, and if he should succeed in acquiring the patents for less than $5,000, the balance of said sum was to be returned to Mackenzie, party of the first part. It was further agreed in the written contract between the parties that said Bobrick should purchase the said patents in the name of Gabriel A. Bobrick, trustee, and immediately thereafter assign the same to the said Mackenzie without further consideration therefor, in consideration of the premises, it was further agreed by
Pursuant to this contract the defendant Mackenzie procured to be drawn and issued by the Second National Bank of Hoboken, N. J., six cashier’s checks aggregating in amount the sum of $5,000, and forwarded the same to Bobrick at Los Angeles, whither he had gone for the purpose of acquiring
The only serious question raised by the defendant, appellant, is that the plaintiff has attempted to pursue inconsistent remedies; that when the plaintiff brought action to recover upon the cashier’s checks he treated the contract not as broken but as in full force and effect, and that he maintained such position until the trial herein; that the present action, based upon the breach of said contract, is inconsistent therewith. I do not think that there is anything in this claim of the appellant. In the first place the former action brought by the plaintiff was not against the defendant, appellant. Indeed, it was brought by plaintiff, as trustee, in his individual name, to recover of the Second National Bank of Hoboken, as drawer, upon its cashier’s checks which were issued to him upon an express trust. The present action is brought by him individually against the party with whom he had contracted, for damages for breach of contract. The previous action was brought against the Second National Bank of Hoboken to recover upon three of the six casMer’s checks which it had drawn upon the National Park Bank of New York, payable to the plaintiff, as trustee. The plaintiff, as trustee, had an entire right to pursue that remedy. It is true the defendant sought to prevent collection of those casMer’s checks, but the trial court and tMs court and the Court of Appeals successively held that the plaintiff was entitled to recover of the drawer the amount of the checks sued upon. Defendant’s efforts were, therefore, futile, and plaintiff had the right to assume that the contract was still in force. It was the plaintiff’s duty to perform Ms part of the contract, to wit, to purchase and obtain assignments
Inasmuch as the defendant has committed a breach of the contract in question, for which plaintiff has recovered a judgment herein, the latter should not be permitted to retain the recovery which he has obtained, as trustee, against the Second National Bank of Hoboken; so far, at least, as the interest of the cestui que trust therein is concerned. While that question is not involved upon the determination of this appeal, we deem it not improper to suggest that equity may allow a setoff or compel an accounting on the part of the plaintiff, as trustee, wherein the rights of the Second Naiional
Clarke, P. J., Laughlin, Smith and Greenbaum, JJ., concur.
• Judgment affirmed, with costs.