199 A.D. 442 | N.Y. App. Div. | 1922
The amended complaint herein sets forth two causes of action. In the first cause of action it is alleged that plaintiffs are and at all times mentioned in the complaint were copartners doing business under the firm name and style of Redfield & Wilson and were so known to defendant, which is a foreign
“ 11. Up to and including March 26, 1920, plaintiffs duly performed all conditions on their part and duly performed all the terms and obligations which said agreement required of them to be done and performed with the exception that plaintiffs did not simultaneously with the execution of said agreement, deliver or tender to the defendant any surety company bond' as required by the article or paragraph of said agreement therein designated ‘ X.’ But simultaneously with the execution of said agreement the defendant, acting through the same officer, to wit, its president, who in its behalf executed said agreement as therein appearing, stated to the plaintiffs that the defendant then and there dispensed with the performance of said requirement on the plaintiffs’ part until such time, prior to July 1, 1920, as the plaintiffs would be ready to commence receiving oil from the defendant under said contract. In reliance on such statement, the plaintiffs forbore from furnishing a bond simultaneously with the execution of said contract, and had not furnished such a bond up to and including March 26, 1920, nor had they up to said date commenced taking oil under said contract from the defendant. On or about the date last named, however, the defendant notified the plaintiffs that it canceled said agreement, and would not perform or be bound by its terms, and had made arrangements to sell the oil constituting the subject-matter of said agreement elsewhere. Plaintiffs, in forbearing from furnishing said bond during the period aforesaid, acted in good faith and in reliance upon the action of the defendant hereinabove set forth.” It is then averred that plaintiffs by reason of the premises have been damaged in the sum of $5,000,000.
The defendant has demurred to each cause of action upon the following grounds:
1. That the plaintiffs have not legal capacity to sue, in that it appears upon the face of the complaint that there is no cause of action vested in plaintiffs as copartners.
2. That the plaintiffs have not legal capacity to sue, in that it appears upon the face of the complaint that there is
3. That there is a misjoinder of parties plaintiff, in that it appears upon the face of the complaint that plaintiffs have no cause of action jointly as copartners.
4. That the complaint does not state facts sufficient to constitute a cause of action.
As to the first three points, I deem the plaintiffs’ right to sue herein established by the opinion of Mr. Justice Laugi-ilin in Weber v. Columbia Amusement Co. (160 App. Div. 835).
Considering further the objection raised that the second cause of action is not good for the reason that the alleged waiver by defendant of the requirements for the giving of a surety bond was invalid, it is sufficient to say that the force and effect of the waiver in question must depend in a large degree upon the proof of what actually occurred at the time when the contract was executed and the alleged waiver made, and the precise time at which the latter was made, with reference to the other acts which then took place. Upon the face of this pleading, the case is brought within the rule laid down in Imperator Realty Co. v. Tull (228 N. Y. 447). It is, therefore, not subject to demurrer.
The order appealed from will, therefore, be affirmed, with ten dollars costs and disbursements, with leave to the defendant to withdraw its demurrers and answer within twenty days after the entry of an order herein, upon the payment of said costs and ten dollars costs of motion at Special Term.
Clarke, P. J., Laughlin and Page, JJ., concur; Smith, J., dissents as to the second cause of action.
Order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrers and to answer on payment of said costs and ten dollars costs of motion at Special Term.