60 N.Y.S. 739 | N.Y. App. Div. | 1899
This case has been through all the courts upon demurrer. It was finally decided by the Court of Appeals, affirming this Appellate Division, that the complaint, stated a good cause of action against' both defendants. (157 N. Y. 60.) The issues of fact were then tried at Special Term, resulting in a judgment for the plaintiff, from which the defendants now appeal. As the main questions of law presented by the complaint were finally settled by the Court of Appeals upon the demurrers, we will now confine ourselves to the questions arising upon the trial. The defendants in their answer deny the making of the contract — formerly admitted by the demurrer — for the specific performance of which this action is brought. The learned trial judge found, as matter of fact, that this contract was entered into by the parties; and the correctness of this decision is the first question presented upon this appeal. We have gone oyer the evidence carefully and, in our judgment, it is amply sufficient to sustain the plaintiff’s allegation upon that head. The contract, though signed and sealed on behalf of the company
Thus Siegel insisted upon and accepted an agreement to indemnify his company against his own deliberate, and, we regret to have to say, dishonorable breach of contract — an agreement which speaks of the contract indemnified against as one recently made and now existing. We say of the contract indemnified against, for the reason that there can be no doubt that the plaintiff was the pattern company referred, to.
The contract with the plaintiff was not, as contended, out of the Ordinary course of the Siegel-Cooper Company’s business, nor did it virtually create a partnership or anything in the nature of a partnership between that company and the plaintiff. The. Siegel-Cooper Company was to receive one-third of the moneys derived from the sales of patterns,' simply as compensation for the use of space in the establishment and for the permission given to the plaintiff to conduct its department in that space.. It admits, by not denying, the allegation of the complaint that it “ is engaged in the business of selling at retail all articles required by people for consumption or use, and occupies and carries on the greatest department store in the world.” The contract in question is entirely in -line with the methods adopted for- the carrying on of such a business. It may accurately be said to be a contract made in the' ordinary course of such a business. Contracts of the same general nature, varying in detail, were made by the Siegel-Cooper Company with regard to its birds and animal department; also with regard to the wine and liquors department. There was also a wall paper contract. Space in the shop was rented by a dentist and a barberalso by .a-'chemist and a florist. '-Some of these agreements-were signed by the president,
The president, Siegel, was certainly clothed with apparent authority to make any contract for space in this great department shop, with a view to the sale therein-of almost every conceivable kind of goods, or the transaction of almost every variety of business. Such contracts were as much a part of its ordinary business as the purchases and sales of goods directly upon its independent account. We are not called upon to decide whether the general manager of this business, acting alone and independently, was under all the circumstances clothed with the same apparent authority as the president. It is sufficient to sustain the finding below that he was undoubtedly authorized to formulate and.execute any contract upon the subject in question to which the president had agreed. Applying the well-settled rule of law already stated to the' facts here presented, there can be no doubt that upon the signature of the contract in question by Hogan and Iioewing, and its delivery thereupon to the plaintiff, the Siegel-Cooper Company became bound thereby.
■ This brings us to the more serious branch of the appeal, namely, that relating to the form of the decree. Specific performance of the
The plaintiff,- therefore, is rectus in curia. It brought its action in the. appropriate forum, and -it came into that forum with an undoubted- equity on both sides of the contract. The court, then, in its discretion, declined to grant a part of the equitable relief to which the plaintiff was entitled. This declination did not proceed upon any infirmity in the plaintiff’s equity, but solely ab conmnienti.
If, therefore, the plaintiff is to have anything approaching to a full measure of relief, it should not only be permitted to recover as ■damages the immediate profits which it would have realized from the execution of the contract, but should also have an injunction to restrain the defendants from conferring upon a competitor the very prestige and renown for which it contracted, and upon which its future success must largely depend. Even that relief is necessarily but partial and incomplete. It would be a. mockery of justice to award it this inadequate relief upon the conditions sug, gested, and thus, in but a small measure, protect its future at the expense of all its present rights.
The general rule is also invoked that one who has broken his com tract may, nevertheless, be permitted to mitigate the damages for which he thus becomes liable; and it is claimed, as coming within
Our conclusion is that the decree was more favorable to the defendants, in the particulars discussed, than they were entitled to, and that that part of the judgment is affirmable.'
The remaining question is as to the damages. Here, we think, the learned trial judge erred. First, in holding the Butterick Company liable, and, second, in the manner provided for ascertaining the damages as to the Siegel-Cooper Company. The Butterick Company cannot be held in this action for the damages resulting from the Siegel-Cooper Company’s breach of contract. If it is liable to the plaintiff at all, it must be in an action of an entirely different character. The present action is for the specific performance of a contract to which the Butterick Company was.not a party. The latter company is made a party defendant only because an injunction is asked to restrain it, as well as the Siegel-Cooper Company, from selling patterns in the space allotted to the plaintiff under its contract.
It will be observed that this is not the case of an interlocutory decree for an accounting as to profits derivable by both or either of the defendants, to which, when ascertained upon a reference, the plaintiff will in the final decree be entitled. It is a case of damages pure and simple, in lieu of a decree for specific performance, and these are necessarily damages for the breach by the Siegel-Cooper Company of its contract. If the plaintiff has any cause of action at law against the Butterick Company — as to which we express no opinion — it is not for any breach of contract on the latter’s, or the Siegel-Cooper Company’s, part, but for what can only be claimed to
As to the Siegel-Cooper Company, the damages should have been ascertained and awarded upon the trial. The court liad no power to refer the case upon that head. When it found in favor of the plaintiff upon the general' equity of the case, but declined, in the exercise of its discretion, to grant a decree for specific performance,it should have proceeded with the trial of the plaintiff’s resulting demand for damages. (Sternberger v. McGovern, 56 N. Y. 12; Beck v. Allison, Id. 366.) The plaintiff had no right to a reference either to try that demand or to inform the court upon the subject. It is true that section 1013 of the Code of Civil Procedure provides that “In an action triable by the court without a.jury, a reference may be made, as prescribed in this section, to decide the whole issue or any of the issues; or to report the referee’s finding upon one or more special questions of fact involved in the issue.” All this, however, relates exclusively to equity cases “ where the trial will require the examination- of a long account.” These latter words precede those above quoted in the same section, and it is as to these-words that the expression “ as. prescribed in this section ” relates.. This construction was given to section 1013 by the Court of Appeals in Thayer v. McNaughton (117 N. Y. 114), where Judge Andrews said : “ The same rule ap[3lies to equitable as to legal actions. In-neither case .can a compulsory reference be ordered unless the trial-will require the examination of a long account.. In equity actions the reference may be of the whole issues or any one of them, or to report upon specific questions of fact. -But the power of the court to order the reference is limited by the general condition contained' in the first clause of section 1013, which is alike applicable to cases triable by the court and cases triable by jury.”
The only other section of the Code at all bearing upon this question of power is section 1015.- That section, after authorizing the usual reference to take an account after .an interlocutory judgment, adds: “ And also to determine and- report upon a question of fact,
■ This provision was carefully considered in Doyle v. Metropolitan Elevated R. Co. (136 N. Y. 505), and it was held that it related only to some question of fact arising collaterally and not upon the pleadings. It was accordingly further held that the damages recoverable in an equity action against an elevated railroad company to restrain continuous trespasses, constitute a direct and vital issue in the case, which in every just sense arises upon the pleadings and cannot, therefore, be compulsorily referred. This is Judge O’Brien’s language upon the point: “ This aspect of the case is not changed by the circumstance that in this form of action the issue of damages is incidental to the general jurisdiction of equity to grant relief by injunction. It is true that equity assumes the jurisdiction necessary to administer complete justice, and incidentally draws into the case all questions that might have been the subject of successive actions at law, still the damages constitute a direct and vital issue in the case which, in every just sense, arises upon the pleadings.”
The learned judge then carefully distinguished the cases of Camp v. Ingersoll (86 N. Y. 433) and Drexel v. Pease (129 id. 96), and showed that there was no conflict between what, upon their special facts, these cases really decided and the rule which he laid down in the case then under consideration.
It follows, therefore, that when the court declined to grant specific performance, the plaintiff’s damages became an integral part of the trial, and the learned trial justice should have proceeded to hear and determine| the resulting issue upon-that head.
The plaintiff may, however, if it so elects, waive this erroneous provision of the decree and hold all that precedes it. Accordingly, if it shall stipulate within five days that all of the 2d paragraph of the decree except the award of costs be stricken out, the judgment contained in the 1st paragraph, together with the award of costs, may be affirmed, without costs here. If, however, the plaintiff does not so stipulate, the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.
■ Van Brunt, P. J., Rumset, Ingraham and McLaughlin, JJ., concurred.