119 N.Y.S. 990 | N.Y. App. Div. | 1909
Appeal from an order denying a motion 'by. the defendant H. Bridgman Smith for judgment upon the pleadings upon the ground that the complaint does not state facts sufficient to constitute a cause of action as against said defendant.
The complaint alleges that the defendant Whipple invented or discovered a certain- valuable chemical compound and process for insulating underground electrical cables and for ■ other purposes and in January, 1909, informed plaintiff of his said invention and requested him to secure a person or persons who would be willing to furnish the necessary capital to organize a corporation for the purpose of manufacturing and marketing the products thereof; that said Whipple agreed that in case plaintiff was successful in securing such person or persons, that plaintiff should receive such compensation for his said services as might, be mutually agreed upon between such persons and Whipple and plaintiff; that thereafter plaintiff actively interested himself, and carried on negotiations with various persons, and as a result finally succeeded in inducing the defendant Smith to agree to furnish the necessary capital to manufacture and market said products; that thereafter, .on the 24th of February 1909, an agreement in writing was entered into between plaintiff, Whipple and Smith, wherein the compensation of plaintiff for the services which he had so rendered was agreed upon. A copy of that agreement was annexed to the complaint. It recites: “ Whereas the. party of the first part .[Whipple] has made certain discoveries relating to oil insulation for electric pables and varnishes, apparently of material commercial value, and has associated the party of the second part [Perrin] with him to further the marketing thereof, and the party of the third part [Smith] is willing to form and finance a company to manufacture and market same if he finds to his satisfaction after investigation that said discoveries are valuable commercially. - Now, therefore, this agreement witnessetli, that in consideration of these presents, and of $1 paid by each of the parties hereto to each of the others, receipt of which is hereby acknowledged, the parties hereto jointly and severally covenant and agree as follows: I. The party of the third part [Smith], within thirty days from date, is to investigate the commercial valúe of said discoveries,‘without expense to the other parties hereto, and if same is satisfactory, is so to
The complaint proceeds, that within thirty days from the date of said written agreement Smith notified plaintiff and Whipple of his satisfaction with said invention and discovery and promised and agreed to forthwith incorporate a company to manufacture and sell the products thereof, pursuant to the terms and conditions set forth in the agreement; that prior to the expiration of the thirty days mentioned, favorable action was taken thereunder by the parties thereto, but although plaintiff has made due demand therefor, Smith has not incorporated a company pursuant to the terms and conditions set forth in the agreement, but in violation thereof has refused and still refuses so to do, although plaintiff has at all times been ready and willing, and is now ready and willing, to perform the terms and conditions on his part to be performed; Upon information and
lío equitable cause of action has been set forth in' the complaint, lío court could compel the specific performance of a contract to form a corporation and compel that corporation, after it was formed, to elect certain specific persons as 'officers thereof at a fixed salary. So far as the provisions in regard to the stock are concerned, in Clements v. Sherwood-Dunn (108 App. Div. 327; affd., 187 N. Y. 521), an action in equity to procure, a specific performance of an alleged oral contract by which the plaintiff claimed that the defend-? ants had agreed to deliver to him certain shares, of stock of a cor
• The injunction here prayed is in aid of specific performance, and as that may not be had, there is no ground for an injunction. In Fox v. Fitzpatrick (190 N. Y. 259) Judge Vann said: “-The equitable remedy of injunction by judgment, as distinguished from an injunction by order pendente lite, depends upon the incompleteness, and inadequacy of the legal remedy. If issued to restrain the breach of a contract it is ‘ a negative specific enforcement of that contract’and jurisdiction does not, attach unless ‘the contract is one of a class which will be affirmatively specifically enforced.’ ”
The plaintiff did not' furnish" brains to the enterprise; he did not discover or invent or patent or develop or have anything to do with the article which was the basis of the whole agreement. He was a mere promoter who brought an inventor and a capitalist .together. There may have been a breach of contract, but that did not authorize an equitable' .action for specific performance or an incidental injunction.
It is the rule that where a complaint is framed in equity and upon demurrer it has been decided that no equitable cause of action is stated, the complaint may be dismissed. (Cody v. First National Bank, 63 App. Div. 199; Black v. Vanderbilt, 70 id. 16; Kelly v. Downing, 42 N. Y. 71.) But the-same cases hold that when an answer had been put in, the complaint should not be dismissed if a cause of action was stated, no matter what relief was prayed. In the case, at bar there is an answer and there are issues of fact raised; plaintiff has asked for such other and further relief as he may be entitled to.
The plaintiff has stated facts sufficient to constitute an action at law for damages for breach of contract. Although he has framed his complaint in equity and has -not alleged the amount of said
For these" reasons the order appealed from should be affirmed, with costs and disbursements to the- respondent.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Order affirmed,' with ten dollars costs and disbursements.