131 N.Y.S. 295 | N.Y. App. Div. | 1911
This appeal is'ey the plaintiff from a judgment entered upon a decision of the- Special Term in Westchester county, in an action in replevin trii d before the court without a jury. The action was brought originally against the Westchester Comity National Bank to recover certain shares of stock deposited by the plaintiff with the bank as collateral security for the payment of a note. The present defendant was substituted as, a .party defendant in the place of the bank, and the question tried out was as to the rights of the parties to hold the shares of stock in question. The facts are practically undisputed except in one feature. The plaintiff here was the president of a corporation known as the Thomas McNally Company. That corporation made and delivered to the bank its promissory note dated April 21, 1908, in the sum- of $5,000. This note was a ■collateral note, and recited the deposit with the bank as collateral security of the following stock: 10 shares of the German Savings and Deposit Bank of Pittsburg, 105 shares of the Thomas McNally Company, 50 shares of the American Structural Steel Company. The plaintiff claims to own these shares of stock in his own right, and to have deposited them as collateral security with the bank simply for the accommodation of the corporation which made the note. As to this claim there is no dispute. When the note came due, on May 21, 1908, the bank, at the request of Thomas McNally and one Gill, who was the secretary and treasurer of the McNally Company, drew a draft upon the present defendant for the amount of the note, and forwarded with the draft 105 shares of stock of the Thomas McNally Company. The defendant honored the draft, took the note and stock forwarded. Here, however, comes the dispute as to the circumstances attending the acceptance Of the draft. The defendant gave evidence that when the draft was presented ' to it it refused to accept it unless all the collateral described in the note was turned over to it. This evidence shows that some officer in the bank, who was communicated with by telephone, promised that if the defendant would honor the draft at once, the rest of the stock mentioned in the note would be sent to it by mail on the following day. Some of the bank officers deny that any such conversation took place. The court,
The learned counsel for the appellant refers to the agreement of April 25, 1908, in his brief as follows : “ The contract was drawn with great definiteness, evidently by an able lawyer, and under ho circumstances can it be deemed to be incomplete or ambiguous. The contract- is thorough and complete in itself, and as it is, this contract cannot be added to or supplemented by any other or parol undertaking,' * * . * but win "be deemed to be conclusive, and to be entirely controlling upon the question of the rights of the parties between themselves. ” Assuming the correctness of this contention, then the question of the interpretation of the meaning of its provisions became a question of law for the court. (First National Bank v. Dana, 79 N. Y. 108; Dwight v. Germania Life Ins. Co., 103 id. 341; Brady v. Cassidy, 104 id. 147; 9 Cyc. 591.)
The learned trial court found that this agreement of April 25, 1908, did not. obligate the defendant to pay the note of the McNally Company which had been discounted on April 21, 1908. The language of the agreement as to moneys to be advanced. was wholly prospective. The advances were to be made “ at the times, and in the amounts as the progress of the said work shall require.” It is evident that the parties had before them knowledge that the McNally Company had, before making this agreement, borrowed money on loans for the purpose of carrying on its contract with the city of New York. They dealt with this situation in precise language as follows: 'cIt is further understood and agreed that the interest on the loans due by said party of the first part, the proceeds of which were used upon said contract, shall be paid as the same become due and payable, and the same shall be a charge against said, contract. ” Here there is no inclusion of a duty to pay the principal amounts of the loans, but only the interest upon them
The court found on sufficient evidence that when the bank ' . sent the draft to the defendant it did so aij the request of both McNally himself and one Gill, the secretary and treasurer of the McNally Company. It also found that when the defendant honored the draft it did so at the request of the McNally Company through its officers. Under these circumstance's we think that ,the act of the defendant in honoring the draft cannot be • considered as that of a mere volunteer who' injected himself' into transactions between other parties.. Having been requested to take up- this note, upon which it had no liability whatever to the payee, it would seem that equity would imply an agreement between the maker of the note and the defendant, that the defendant, should stand in the shoes of the payee of the • note when it honored the draft made under the circumstances. The defendant had an interest to protect when it complied with the request of the McNally Company to take up the note. If the note became dishonored in the bank, and suit was brought and judgment obtained against the McNally Company such judgment, if unpaid, might prove a serious obstacle in the way of a carrying out of the agreement of April twenty-fifth between the McNally Company and the defendant in relation to the completion of th,e aqueduct contract with the city.
There is some discussion in the brief of the appellant in regard to what are described as inconsistent findings of fact by the trial court. It seems to us that there is nothing of weight in this contention. The whole theory of the appellant is that the defendant was - obligated to pay the note by virtue of the contract of April 25, 1908,- with the McNally Company. At the request of the defendant the court made a finding that it was not so obligated.' The plaintiff requested the trial court to
This rule applies, however, to findings of fact as distinguished from conclusions of law. As before pointed out, the question of the interpretation of the agreement of April 25, 1908, was purely one of law, and it did not become one of fact simply because the appellant in his requests to find so labeled it. Where the trial court has made proper findings of facts and proper conclusions of law and awarded judgment accordingly, such judgment should not be reversed because at the request of the defeated party it has, through inadvertence or any other cause, found an inconsistent conclusion of law.
The judgment should be affirmed, with costs.
Burr, Thomas, Woodward and Rich, JJ., concurred.
Judgment affirmed, with costs.