87 N.Y.S. 574 | N.Y. App. Div. | 1904
The real question involved in this case relates to the plaintiff’s right to maintain .this action at the time it was instituted ;• and I am of the opinion that it was. prematurely brought and that under the contract made by him with the defendant and under the evidence • appearing in the record, although he may be entitled to recover in another action as the facts may be made to appear hereafter, no cause of action existed when this suit was brought. The solution of the question depends largely, if not altogether, upon the construction of written instruments. The facts are simple. The defendant is a corporation which seems to have been engaged in the business, among other things, of buying and selling insurance stocks. On March 8, 1900, it entered into a contract with the plaintiff in the following words: “ In consideration of One dollar and services to. be performed by you, as hereinafter stated, we hereby agree to pay .
Under this contract the plaintiff introduced to the defendant the manager of the London and Lancashire Fire Insurance Company, and an arrangement was made by which that company purchased the stock of the Orient Fire Insurance Company of Hartford, Conn., and out of this transaction the defendant was entitled nominally to a fee or profit, or compensation, as it may be called, of $143,000. It is proven that of this some $77,000 was paid to the defendant,, but it is admitted that from that last-mentioned amount the sum of $62,500 is to be deducted as expenses of the defendant. It is unnecessary to inquire into the details of these expenses, because the plaintiff testified that he knew that amount was to be allowed for expenses and that the defendant must be credited therewith. In the arrangement that was made for the purchase by the London and Lancashire Fire Insurance Company of the Orient Fire Insurance Company stock it was required by the purchaser that $65,000 of the $143,000 to go to the defendant should be retained by the purchaser for three years as security or a guaranty that certain assets of the Orient Company would bring the sum of $287,000 and certain other assets, $118,000 within that time, and this $65,000 was to be retained from the purchase money and kept in the hands of the purchaser until the expiration of the three years mentioned.
It is to be observed that in the contract made between the plaintiff and the defendant nothing whatever is said or suggested as to terms upon which contracts might be made by the defendant with purchasers. That was a matter resting entirely within the discretion of the defendant. All that the plaintiff was entitled to was one-fiftli of profits realized and received by the defendant, either actually in
It seems to me, therefore, that the action was prematurely brought and that the judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.