194 A.D. 248 | N.Y. App. Div. | 1920
Lead Opinion
The complaint contains two counts. In the first it is alleged that on or about the 9th day of May, 1917, plaintiff and the defendant La Sociedad Para La Fusion de la Prensa y El Tiempo, a Peruvian corporation, entered into an agreement in writing, a copy of which is annexed to the complaint, whereby said defendant agreed to purchase from the plaintiff certain news print paper; that the plaintiff duly performed all of the conditions of the contract on its part to be performed and on June 25, July 3 and July 20, 1917, duly made shipments of paper to said defendant in part performance of the contract; that said defendant wrongfully failed, refused and neglected to accept the shipments and to pay for the same in accordance with the terms of the contract but later on accepted the paper, and that by reason of its failure promptly to accept and pay for the paper, plaintiff incurred expenses in the sum of $193.16 and lost interest on the purchase price amounting to the sum of $753.35, no part of which has been paid, excepting the sum of'$721.28; that said defendant thereafter and on the 6th day of August, 1917, and subsequently thereto, wholly repudiated the contract and requested and directed the plaintiff to make no further shipment thereunder; that at the time of such repudiation, plaintiff was ready, willing and able to complete
Without deciding whether the rule that parties jointly liable on a contract must be joined in an action thereon would be applicable in the case at bar, we are of opinion that it was proper to join the appellant with the corporation, for under the allegations of the complaint he became liable to plaintiff as if a party to the contract although his guaranty and agreement may have been by a separate instrument. (Spofford v. Rowan, 124 N. Y. 108; Stein v. Whitman, 156 App. Div. 861; revd., on dissenting opinion, 209 N. Y. 576.) It was, therefore, proper to join appellant with the corporation in the count for damages for the breach of the contract and in the count for the award of the arbitrator.
The allegations of the complaint are sufficient to admit evidence of the execution by the appellant of a valid guaranty of performance of the contract by the other defendant and an agreement on his part,to become jointly liable with it for the performance of the contract, as an inducement to the plaintiff to sign the contract. (Moran v. Standard Oil Co., 211 N. Y. 187; Davis v. Frank, 102 Misc. Rep. 683.) Therefore, a cause of action is sufficiently stated.
There is no force in the contention that owing to the provision in the contract that it is to be guaranteed by Durand, it is necessary for the plaintiff to allege a guaranty by him after the execution of the contract. Under the allegations of the complaint, it may be shown that he executed a sufficient
Since we are of opinion that the award is void it becomes unnecessary to decide whether it would be proper to join in the single count or in separate counts a cause of action for breach of the contract and a cause of action for an award of damages therefor.
It follows that the order should be affirmed, with ten dollars costs and disbursements, with leave to the appellant to withdraw the demurrer and to answer on payment of said costs and, costs of the action to date awarded to the plaintiff by the court at Special Term.
Smith and Merrell, JJ., concur; Clarke, P. J., and Page, J., dissent.
Dissenting Opinion
I cannot concur in Mr. Justice Laughlin’s conclusion as to the demurrer to the second cause of action.
The gravamen of that cause of action is the non-payment of the award made by the arbitrator. Mr. Justice Laughlin finds the facts stated insufficient to constitute a cause of action to recover the award, but because the facts stated in the first cause of action are realleged by reference thereto, and we are agreed that those facts were sufficient to state a cause of action for a breach of the contract, he holds the second cause of action good as against the demurrant. In my opinion the facts realleged are merely by way of inducement, and are introductory to, and explanatory of, the material facts alleged to constitute the second cause of action. They are not material or necessary to that cause of action, for if the plaintiff proved all those facts, and failed to prove the provisions in the contract for arbitration and award thereunder, it could not obtain judgment for the award. While they are not material and necessary to the cause of action, they are not irrelevant or redundant and could not be stricken out on motion. In all forms of pleading whether at law, in equity or under the Code, allegations have been allowed of matter of inducement, i. e., a statement of matter which is introductory to, and tends to explain or elucidate the principal subject of the complaint, out of which the cause of action arose.
These allegations being explanatory merely, are not required to be traversed, nor should they be stricken out on motion. (McGarahan v. Sheridan, 106 App. Div. 532, 538; Hale v. Tyler, 104 Fed. Rep. 757, 759.) On demurrer they should be disregarded.
In my opinion the demurrer to the second cause of action should be sustained.
Clarke, P. J., concurs.
Order affirmed, with ten dollars costs and disbursements, with leave to appellant to withdraw demurrer and to answer on payment of said costs and costs of action to date.