142 Misc. 69 | N.Y. Sup. Ct. | 1931
This action is brought by plaintiffs, children and heirs at law of Orrin T. Higgins, deceased, for specific performance of a contract made by his mother, Kate C. Higgins, deceased, widow of Frank W. Higgins, former Governor of the State of New York, in which it is alleged that Mrs.. Higgins, in consideration of the transfer by Orrin T. Higgins of his two-ninths interest in the residuary estate of his father, Frank W. Higgins, to the Higgins Company, a corporation organized to manage and liquidate said residuary estate, orally agreed that she would so dispose of her property by will that said Orrin T. Higgins would receive one-third of it, or, in case he should predecease her, then that his share should go to his children, the plaintiffs herein. Mrs. Higgins at the time of the alleged agreement had three children living, to wit, Orrin T. Higgins, Josephine Higgins and Frank Harrison Higgins. This contract is alleged to have been made in or about the month of November, 1908. Orrin T. Higgins died September 12, 1912. Kate C. Higgins died May 24, 1929, leaving a last will and testament, by the terms of which she gave to each of the plaintiffs the sum of $5,000 out of an estate of approximately $750,000. On July 2, 1930, proof of claim asking for the performance of the above contract was filed with the executors, and upon its rejection this action was brought against the executors and trustees of the Kate C. Higgins estate, the executors of the estate of a deceased daughter, Josephine, and trustees of Josephine’s two children, Beatrix Hovelaque and Pierre Hovelaque, and against Frank Harrison Higgins, son of Kate C. Higgins.
Plaintiffs’ evidence as to the making of the alleged contract was given by Elizabeth Higgins, widow of Orrin T. Higgins and mother
The defendants claim that the testimony of the plaintiffs is contradicted by one who they say is the only disinterested witness now living of that conference, and by proof of other facts and circumstances which the defendants say discredit this evidence, or at least make it so doubtful that plaintiffs cannot be said to have
Other circumstances bear out the contention that the contract was not only made, but that testatrix intended to, and in fact for a time did, recognize the contract. It appears from her letter to her son, dated November 7, 1908, that by her then existing will she had treated her children ahke. This will was in existence at
The defendants insist that the testimony offered by plaintiffs to prove the above contract was inadmissible as an attempt to vary by parol evidence the terms of a written contract. As the court views it, there are several answers to this: The first is that the written contract recites: “For a valuable consideration by each to the other in hand paid, the receipt whereof is hereby acknowledged, it is mutually covenanted,” etc. The rule is too well settled for argument that parol evidence is admissible to show what in fact was the consideration for an agreement. (See McCrea v. Purmort, 16 Wend. 460; Baird v. Baird, 145 N. Y. 659; Presbyterian Church v. Cooper, 112 id. 517; Seeley v. Osborne, 220 id. 416.)
In McCrea v. Purmort (supra) the court reviewed the English and American authorities on the subject and said (at p. 473): “ Nor is its [a deed’s] acknowledgment of a particular consideration an objection to other proof of other and consistent considerations,” and quoted with approval (at p. 469) the words of Parker, Ch. J., in Wilkinson v. Scott (17 Tyng [Mass.], 249), as follows: “A m,au is estopped by his deed to deny that he granted or that he had a good title to the estate conveyed; but he is not bound by the consideration expressed; because that is known to be arbitrary and is frequently different from the real consideration of the bargain.”
The evidence was offered here for the purpose of showing what the “ valuable consideration ” mentioned in the contract really was, and is admissible for that purpose. The second answer is that the contract here sued on was separate and collateral to the written agreement entered into by the parties and, as the evidence discloses, the inducing cause thereof. The principle is well stated in Jones Commentaries on Evidence (Vol. 3, p. 2719) that “ Where a parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms part of the consideration for a written contract, and it appears that the written contract was executed on the faith of the parol contract or representations, such evidence is admissible.” (See, also, Encyclopedia of Evidence, vol. 9, p. 350; Juilliard v. Chaffee, 92 N. Y. 529; Baird v. Baird, 145 id. 659; Beagle v. Harby, 73 Hun, 310; Andrews v. Brewster, 124 N. Y. 433.)
As is indicated by Williston in his work on Contracts (Vol. 2, p. 1235): “ To differentiate the promises in contracts as they arise, as either collateral or the reverse, is very difficult and sometimes
In the case at bar the evidence discloses that the consideration for the oral agreement was the execution by Orrin T. Higgins of the written agreement. To that extent the written contract and the oral contract 'are bound together but the bond is not, in the opinion of the court, sufficiently close to exclude proof of the oral agreement. That the oral agreement is in form collateral to the written agreement is clear on the evidence. That the oral agreement does not contradict the express or implied provisions of the written contract is also clear here. The written contract embodied the obligation of Orrin T. Higgins to convey his interest in his father’s estate to the Higgins Company. The oral contract embodied, on the other hand, the obligation of Kate C. Higgins to leave Orrin T. Higgins a share equal to that left his brother and sister in her estate. The two contracts were thus totally unrelated in subject-matter; nor does the oral agreement appear to contain or define in any respect the engagements of the parties under the written contract.
The test as to whether an agreement is collateral and independent is laid down by the court in Lese v. Lamprecht (196 N. Y. 32, at p. 37) as follows: “ In deciding whether a particular promise or agreement is collateral and independent of the principal and written contract it is necessary to determine whether the parties to the written contract intended to include therein all of the promises relating to the subject-matter under consideration.
“ Professor Wigmore, in his work on Evidence, says: ‘ In deciding upon this intent, the chief and most satisfactory index for the judge is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered or dealt with in the writing, then presumably the writing was meant to represent a.ll of the transaction on that element; if it is not, then probably the writing was not intended to embody that element of the negotiation. This test is the one used by the most careful judges, and is in contrast with the looser and incorrect inquiry whether the alleged extrinsic negotiation contradicts the terms of the writing.’ (Wigmore on Evidence, § 2430.) ”
The circumstances surrounding the execution of the written agreement relied on by the defendants in the case at bar indicate that it was not the intention of the parties to integrate therein the
It seems to the court, therefore, that the written agreement in question was only part of the undertaking between Kate C. Higgins and Orrin T. Higgins; that the agreement on her part not to change her will, in which she had left Orrin T. Higgins a share equal to that of the other children, was an agreement separate from and collateral to the written agreement and the cause inducing Orrin T. Higgins to enter therein. Upon the facts plaintiffs should be allowed to introduce evidence to substantiate their claims as to this.
The defendants insist that the contract is void under the Statute of Frauds, citing section 259 of the Real Property Law, providing that “ a contract * * * for the sale, of any real property, or an interest therein, is void ” unless in writing. However, it is the opinion of the court that section 259 must be read in conjunction with section 270 of the Real Property Law. Both sections are contained in article 8 thereof. Section 270 provide as follows: “ § 270. Powers of courts of equity not abridged. Nothing contained in this article abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.”
In the case at bar there was full performance on the part of Orrin T. Higgins when he conveyed to the Higgins Company his interest in his father’s residuary estate. He did so, induced by the promise of his mother not to change her will by which she had given Orrin T. Higgins an interest equal to that of his brother and his sister in her estate.
The court believes that the case comes within the application
In view of the performance by Orrin T. Higgins, pursuant to and in reliance upon the agreement, the court believes that the interposition of the statute would result in injustice and fraud.
The defendants also claim that performance by Orrin T. Higgins did not take the case out of the statute because the acts proved as constituting performance do not point unequivocally to the existence of the contract, citing many authorities such as Woolley v. Stewart (222 N. Y. 347) and Burns v. McCormick (233 id. 230). There is no question about the rule that performance must refer unequivocally to the alleged agreement when evidence of such performance is the only evidence of the existence of the agreement. The rule, however, does not apply here, as the oral contract has been abundantly established by evidence independent of and aside from that showing performance thereof. This brings the case clearly within the rule laid down in a very well-considered opinion by Smith, J., in Salem v. Finney (127 Misc. 387). In that case the court said (at p. 394): “ In the instant case the consideration was performance on the part of the plaintiff of her part of the contract. But it is said that ‘ not every act of part performance will move a court of equity.’ That is of course true, unless the performance was the consideration of the contract. It is also said that 1 there must be performance “ unequivocally referable to the agreement.” ’ This would bear rather upon the evidence of the existence of the contract than upon the question of the fulfillment of it. Let there once be established a contract which contravenes no sound public policy, which is not unconscionable, which appeals to the conscience of the.court and accords with natural justice, the proposition that the performance must be ‘ unequivocally referable to the agreement ’ becomes of no moment (except as bearing upon the existence of the contract), unless we are prepared to wipe out the doctrine of consideration as being of the essence of a contract. If the intent is where the contract is not shown by competent evidence, clear and convincing, that the mere fact of the performance may not be taken as evidence of the contract unless it is unequivocally referable to the agreement, then the language of the court becomes consonant with the course of the decisions rendered upon this subject.” (See, also, Pom. Spec. Perf. Cont. [3d ed.] p. 262.)
Most of the cases cited by the defendants in support of their contention that specific performance is here barred are cases where the performance rendered by the promisee pursuant to the oral
In the present case the plaintiffs have no adequate remedy at law in the event specific performance were to be denied, for it would be difficult, if not impossible, to estimate in an action at law the fair and reasonable value of the act of Orrin T. Higgins in conveying his two-ninths interest in the residuary estate of his father. In 25 Ruling Case Law, 589, it is said: “ Where the consideration for a promise to devise land is the rendition of services of such a nature or peculiar character that it is impossible to estimate their value to the promisor by any pecuniary standard and there was no intention to measure them by a pecuniary standard, their rendition has been held in a number of cases a sufficient part performance to take the contract out of the operation of the statute. To refuse a specific performance in such case and leave the promisee to such relief as can be obtained by him in an action at law would enable the promisor thereby to perpetrate a fraud under the protection of the statute of frauds.”
It is also urged that Elizabeth Higgins was not a competent witness under section 347 of the Civil Practice Act to testify to the agreement between Kate C. Higgins and Orrin T. Higgins, "and that there is a defect of parties defendant in that the two Hovelaque children, beneficiaries of the trust of which the defendants City Bank Farmers Trust Company and Herbert Adams Gibbons are trustees, were not joined as parties. Elizabeth Higgins, however, is not in the court’s opinion interested in the event of this action within the meaning of section 347 of the Civil Practice Act. The contract was made between Orrin T. Higgins and the decedent. Elizabeth Higgins joined in it only for the purpose of extinguishing her inchoate right of dower. She was not the inducing cause of the contract in any sense, acquired no rights under it and could not bring suit to enforce it. The plaintiffs here derived their interest through the contract, not through their mother. The two children of Josephine Higgins Hovelaque, residuary legatees under the will of Kate C. Higgins, are not necessary parties to this action. This is a claim against an estate. The legatees and parties interested under the will are represented by the executors and trustees and are bound by the judgment without being made parties to the action. (See Corcoran v. Kennedy, 177 App. Div. 63; Riggs v. Cragg, 89 N. Y. 479, 488.)