41 N.Y.S. 680 | N.Y. App. Div. | 1896
Prom the somewhat confused record of the colloquy between the court and counsel, just preceding the conclusion of the trial of this cause, it is difficult to ascertain the precise ground upon which the case was taken from the jury and a verdict directed for the defendant. The learned judge, however, stated that, if he took the view of the plaintiff's counsel, there would be a question for the jury whether after all the plaintiff was a promoter of the Philadelphia company, but that under the view which he (the judge) took (which view is not stated) that question was immaterial to the determination of the cause. An examination of the whole record discloses that the underlying question involved in the case is whether the plaintiff was entitled to five per cent of the increased capital of the Philadelphia company as the person referred to as “ present promoter ” in the memorandum made by Johnson, and which contains the written evidence of the contract between the defendant company and Hix, for, as we understand the issues and the evidence, the case comes down to a consideration of that question.
The action was brought' by Mr. Hix to recover upon a contract of employment. He specifically declares upon such a contract in his complaint, stating the nature of that employment as being to pro
It appeared in evidence that the plaintiff had rendered service to the defendant from time to time in the organization of electric light companies in various cities of the United States, which companies were to conduct business as licensees of the defendant, and that after a protracted negotiation conducted by him respecting the formation of a company in Philadelphia of the character referred to, Mr. Johnson, the president of the defendant, signed and delivered to him a writing or memorandum which he introduced in evidence as the basis of his claim.
There can be no doubt, we think, that that memorandum constitutes the contract between the parties. It was so treated by the plaintiff, who, insisting that it was such, made strenuous efforts to have it admitted in evidence, and succeeded in so doing only upon producing proof to show that Mr. Johnson, who signed it on behalf of the defendant, was authorized to execute and deliver it as the ■representative of the defendant. The principal effort in the case made by the plaintiff was to get that memorandum before the jury. If it were not the contract, it was certainly nothing constituting documentary evidence binding the defendant, but was at best amere memorandum made by a witness. But it was made by Johnson, the president of the defendant; it was a reduction to writing of what was substantially agreed upon between Hix and Johnson respecting the matter covered by it. It was signed by the party to be charged; was delivered to the person who seeks to enforce it, and was accepted by him as the final evidence of what lie had agreed to with the president of the defendant. That memorandum, referring to the transaction of the organization of the Philadelphia company, is divisible into two branches, the first, so far as the plaintiff is •concerned, relating to the compensation to be paid him for his services. It recites, in substance, that of the $1,000,000 of which the capi
Now, all this evidence was not admissible and was not competent to establish any other contract than that which is contained in the memorandum, Exhibit “ B,” but it was admissible to show the situation and relation of the parties to each other, and what was meant by them in that contract with reference to promoters.. If it is true, then the contention made by the plaintiff, that through all this transaction these several facts existed and were controlling, was
At the trial certain objections to a recovery were urged which influenced the trial judge in directing a verdict for the defendant. On July 15, 1892, a contract was made between the General Electric Company, the successor in interest of the defendant, and the Philadelphia company, whereby the former reduced its percentage of future increases in the stock of the latter from thirty-five per cent
The next reason assigned against a recovery by the plaintiff is, that he was to be paid out of the defendant’s thirty-five per cent of future stock; that neither the defendant nor its successor has received this thirty-five per cent; and that consequently a condition precedent to the maintenance of the action is unfulfilled. Primarily the argument rests upon the terms of the contract itself. Plaintiff’s five per cent is to be a -rebate from the Edison Company’s thirty-five per cent. This doubtless signifies that the five per cent was to •come out of the thirty-five per cent, and, in the absence of special circumstances, the plaintiff would be obliged to wait until his principal had received the fund out of which his own compensation was to come. But the principal may not bargain away his right to receive the fund, and thus deprive the agent of the reward for his ■services. The latter has not agreed to any such thing as this, and the injustice of it is manifest. The principal might receive a full equivalent for the original fruits of the agent’s work, and yet not pay him a dollar. That the principal may not do this, without the ■agent’s express consent, we regard as a proposition too plain for further discussion. There is no such explicit consent evidenced by the terms of the writing.
It is said, however, that the extrinsic evidence shows that the plaintiff agreed to this very thing. In proof of this, prior contracts made by the plaintiff are pointed out. They were none of them in force at this time, but they undoubtedly furnish some evidence of
In this connection it should be pointed out that the defendant’s successor remained entitled to ten per cent of future increases after the contract with the Philadelphia company, and that the record shows that in at least one case it collected this from that company. Thus the plaintiff was clearly entitled to recover something even if
And here we may add that the respondent’s contention with regard to the receipt by the defendant of this ten per cent seems to us to be without any foundation. They say that the proof failed to show the defendant’s connection with the successor company. This point, however, was not taken upon the trial, nor was the case disposed of upon any defect of proof in that respect. On the contrary, what was deemed to be sufficient proof was furnished, and if the plaintiff inopportunely stopped, as the defendant contends, it was undoubtedly because the fapts as to the relations of the predecessor and successor company were assumed by both sides. It is a little late and hardly fair to raise this technicality now.
There is another question which will arise upon the new trial and which should now be considered.- The learned counsel for the appellant has suggested that the plaintiff might be entitled to five per cent of the value of the business taken in exchange for twenty-five per cent of the stock. We do not think that this would be the relief to which he is entitled. To so hold would interpolate into the contract something which is not there. The contract awards the plaintiff five per cent of the defendant’s thirty-five per cent of stock. As the plaintiff’s rights are not dependent upon the actual reception by the defendant of its stock, he will be entitled to the value of his percentage of the stock at the time when the defendant might have received it but for the contract of J uly 15, 1892. In connection with this subject it may be added that we do not think the plaintiff is in any event entitled to five per cent upon the first issue of increased stock. That was so issued as a dividend in lieu or replacement of an equal amount of money earned by the Philadelphia company and used in the expansion of the works or plant of the company. It was in reality earnings or a substitute for earnings belonging to the stockholders who presumably agreed to take those earnings in that form and was not new capital subscribed for as such. And that is evidently the only kind of increase of capital contemplated by the parties to this action in making the memorandum agreement.
Van Brunt, P. J., Barrett, Rumset and Williams, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.