136 N.Y.S. 969 | N.Y. App. Div. | 1912
This action was brought to recover money alleged to have been received by the defendant to the use of the plaintiffs.
On the 29th day of April, 1908, the plaintiffs, as executors, held and owned certain bonds and capital stock of a corporation known as the Fisheries Company, which was insolvent, and on that day they entered into an agreement, in writing, with
An agreement under seal bearing date the-day of July, 1909, between Gustave R. Tuska, individually,, and Tuska and Migel, as executors, as parties of the first part, Heller and Hirsh, individually and as trustees, parties of the second part, •the defendant, party of the third part, and the Atlantic Fertilizer and Oil Company, as party of the fourth part, was executed on the 17th day of September, 1909. It refers to the tripartite agreement and to the agreement of March 31, 1909, and quotes the provision of the latter with respect to the distribution of the proceeds on the sale of the property by the Atlantic Company, and recites that the sale of the property as thus contemplated had been consummated, and that the trustees had released the lien of the mortgage on certain of the property and had taken- other security therefor, and provides in part as follows;
“ First. The parties of the second, third and fourth parts hereby agree with the parties of the first part that any cash, shares, securities, rents, contracts, rights or advantages that may be received by or accrue to any of the parties of the second, third and fourth parts upon a sale of the mortgaged property or any part thereof within two years from the date of the execution of said mortgage or by a sale of the corporate stock of the party of the fourth part or the control thereof whether such transaction be by corporate or individual act, whether it be direct or indirect, whether it be by deed, bill of sale, lease, transfer, operating agreement or otherwise, such proceeds after deducting the amount of the mortgage aforesaid that may remain unpaid and any unpaid indebtedness or obligation of the party of the fourth part, and the amount of any subscription to the stock of the party of the fourth part that*643 may have been paid by the party of the third part, shall be divided into two equal parts, one of which shall go to T. 0. Meadows, Esq., and the other half to the beneficiaries under the Tripartite Agreement in the proportions of their interests as in said agreement set forth.”
It was further provided therein that if the sale should take place after two years the parties of the first part should share in fifty per cent of the net .proceeds only in the ratio that the bonds secured by the mortgage “ which they may still hold bear to the total number of bonds issued to them at the time of the execution of the mortgage — the intention being that after said two years their interest in such moiety shall be proportionate to their actual interests as bondholders.”
The defendant made a motion for a new trial pursuant to the provisions of section 999 of the Code of Civil Procedure, which involved a consideration of the facts, and it appealed from the order denying the motion, but the appeal was long since duly dismissed. The appeal from the judgment presents no question of fact, and it must be presumed that all controverted questions of fact were determined by the jury adversely to the appellant.
The jury were justified in finding, on the testimony of Mr. Meadows, which was controverted by the testimony of Heller, but corroborated by the testimony of other witnesses, that after the agreements to which reference has been made were executed, and on the evening of March 28, 1910, at an interview between himself, Tuska and James E. Heller, Ben Heller, his son, and Hirsh, representing the defendant, he informed them that he had an opportunity to sell the property, but that probably he would be interested in the purchase, and that if he made anything out of it, it would be out of the purchasers, and that he did not wish to make “ on both sides,” and did not care to make profits at their expense, and desired to have the question of division of profits with him eliminated in fixing the selling price, and suggested that a fair price would be $200,000, “which was their upset price prior to improvements,” which had been made, and that they receive in addition an amount equal to the “ trading profits ” of the company during the year ending April 1, 1910, by which was meant profits earned with
Thfe agreement providing for the distribution of the proceeds on a sale of the property within two years from the date of the mortgage, clearly contemplated that the defendant was to receive no special consideration, benefit or advantage on account of its having subscribed for the stock, but that it was merely to be reimbursed for the amount paid for the stock, and that the net profits were to be divided between the three beneficiaries of the trust agreement in proportion to their interests as represented by the bonds held by them. It was expected at that time that if the property were sold the sale would be effected through Meadows, who was to receive fifty per cent of the net profits after payment of the bonds. It is quite plain that when Meadows waived his claim to commissions and became a purchaser, the bondholders, in the absence of any other agreement, would be entitled to share, not merely fifty per cent of the profits, but the entire profits, in proportion to the bonds held by them. Aside from denying certain allegations of the complaint, the only defense interposed by the answer was that Meadows failed to fully perform his agreement with respect to advancing money to the Atlantic Fertilizer and Oil Company, and that the defendant at his request advanced to it large amounts of money and indorsed and guaranteed for it also, and in consideration thereof he released his commission to the defendant. The theory upon which the case was tried appears to be that the defendant was entitled to the fifty per cent of the profits which Meadows would have received had he acted as a broker in making the sale, on the ground that his claim was verbally or by writing released or assigned to it, and that under
The other points urged in behalf of the appellant have been examined, but we find no error which requires discussion in the opinion. Moreover, such alleged errors, if serious, could not be prejudicial, for we are of opinion that the plaintiffs were entitled to recover as matter of law.
It follows, therefore, that the judgment and order should be affirmed, with costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Judgment and .order affirmed, with costs.