103 N.E. 720 | NY | 1913
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *421 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *423 We are of opinion that under the syndicate agreement the relation between the subscribers and the managers (the defendants, appellant) was not that of principal and agents (though doubtless fiduciary), but that the managers themselves became the principals in any contract which they might make. The agreement recites that it was proposed by the defendants Gould, Ramsey and Guy to purchase the Little Kanawha railroad, a line extending from Parkersburg, West Virginia, up the Little Kanawha river, to extend the same eastwardly, to purchase and build a railroad from Parkersburg to Zanesville, Ohio, and to purchase coal lands in *425 West Virginia. The defendants were to do all acts necessary to construct or purchase said properties, and for that purpose "to absolutely control the property so to be constructed or purchased as fully in all respects as if they were the absolute owners thereof." The enumeration of the specific powers was not to be construed as limiting the general powers conferred upon the managers. By the agreement the defendants contracted to purchase the properties on such terms as they thought the best obtainable, and on the other hand, the subscribers agreed with each other and with the defendants to pay the amounts of their respective subscriptions from time to time as called for by the latter, but they were to be liable only to the defendants, and then only to the amount of the subscription.
It was provided that should the defendants in carrying out the agreement sell and dispose of the properties, the net proceeds of such sale should be divided pro rata to the subscribers from time to time in the discretion of the syndicate managers. Should such railroad properties not be sold, but be capitalized by the formation of a new company or new companies, and the transfer thereto of such properties, the securities received by the defendants for the same should be distributed pro rata to the subscribers or their assigns.
It will thus be seen that at least as to all those cognizant of the terms of the agreement, the defendants were not empowered to bind the subscribers beyond the terms of their respective subscriptions, but it was contemplated that the necessary contracts for the carrying out of the project were to be made by the defendants on their own responsibility. Under the agreement the subscribers had no right, title or interest as such in the properties acquired, but only the right upon the termination or closing out of the syndicate to their respective shares of the securities or moneys received by the managers for the property. Such an agreement did not constitute the parties thereto partners as between themselves *426
(Salter v. Ham,
The work which the defendants undertook to carry out was not the prosecution of any general business, but was limited to a single enterprise — the acquisition of a particular railroad, its extension, the building of another road, the acquisition of coal properties along the routes of such roads, their sale or transfer to a corporation and the division of the money or securities received therefor among the syndicate subscribers. This was not strictly a partnership, though it had many of the features of such a relation. (Williams v. Gillies,
Nor do the exceptions taken by the defendants at the close of the charge of the court present any error requiring reversal. The plaintiff made several requests of the court to charge, all of which were granted. All of those presented by the defendants were likewise granted. Thereupon the defendants' counsel excepted to the court's granting and giving to the jury the plaintiff's requests. This general exception pointed out no error and was, therefore, not available.
The defendants also excepted to the charge of the court "with respect to the copartnership of the defendants, and also to the submission to the jury of the question of partnership under the evidence in this case." The only materiality of the question of partnership was as to the authority of Ramsey to bind his co-defendants. That the evidence in the case was sufficient to justify the jury in finding that the other defendants had conferred such authority on Ramsey (if it did not require the court to so charge) we have already said. The exception was, therefore, unavailable. Nor is it saved by the fact that in *428
the charge the court instructed the jury that the defendants were liable as partners instead of submitting that question to the jury for their determination as a question of fact. Moreover, the exception fails for another reason. The request was made on behalf of all the defendants and the exception taken jointly. Plainly the charge, if erroneous at all, was erroneous only as to the defendants Gould and Guy, not as to the defendant Ramsey. The exception taken was a joint one, and such an exception, if not good as to one, is not available to the others. (Bosley v.Nat. Machine Co.,
It was not required that the plaintiff should have made a tender of the lands purchased or of the stock of the corporation to which these lands had been conveyed before bringing the action. The cause of action is not based on the failure to carry out a contract for the purchase and sale of land, nor is it one for specific performance but for moneys laid out and expended for the defendants at their request and for services rendered. If the plaintiff had disposed of or incumbered the land acquired so that he could neither convey the same to the defendants nor transfer the stock of the corporation to which he claimed he was directed to transfer the title, that was a breach of the contract on his part which should have been set out as a defense, but was not pleaded. The other points raised by counsel do not require discussion.
The judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT, HISCOCK, CHASE and HOGAN, JJ., concur; MILLER, J., not sitting.
Judgment affirmed. *429