280 A.D. 629 | N.Y. App. Div. | 1952
Lead Opinion
Plaintiff in an action based on a written contract moved for summary judgment. Partial summary judgment was granted, and plaintiff appeals from so much of the order as denied summary judgment as to the total sum in suit.
Plaintiff as the surviving widow had contracted on September 7, 1944, with her late husband’s associate, defendant herein, in a close corporation for the sale of her stock in the corporation to the associate. The agreement provided that the purchase price was “ tentative ” and was to be adjusted upward or downward, as the case might be, depending upon the “ Corporation’s anticipated liability for Federal Income and Excess Profit Taxes for the year 1943, as it shall be finally determined, as hereinafter defined.” There follow a series of paragraphs purporting to cover various contingencies in which there would be a refund or additional assessment for 1943 taxes for which adjustment should be made in the purchase price. The precise situation which has occurred was not expressly covered.
The partial summary judgment related to a refund under the agreement of excess 1943 taxes based solely on the taxable income for that year considered alone and is not involved in this appeal.
There was a refund in 1948 to the corporation in the amount of $15,805.36 on account of 1943 taxes. The refund was allowed because of the 1 ‘ carry-back ’ ’ provision in the Federal tax laws. That is, the corporation incurred losses in 1944 and 1945 on account of which it was entitled to a refund of a portion of its 1943 taxes. It is to one half of the sum represented by this refund for which plaintiff makes claim.
The affidavits submitted on the motion do not suggest any available evidence in parol that would amplify the written agreement in determining the intention of the parties or the effect of the writing. Hence, there is no question of fact to be determined upon a trial. There is but a question of law and that is the interpretation of the written agreement. The parties do not contradict one another materially as to any event or conversation. They do controvert as to the meaning and effect of the agreement they signed.
The foregoing construction effects the intention of the parties insofar as one can read it from the agreement; it fairly divides the benefits and burdens between the parties with reference to which the agreement failed to express itself (the intention being implicit) in the same manner as to those matters in which expression was detailed, and it provides a relatively certain basis for construction.
The order so far as appealed from should be reversed, with $20 costs and disbursements to appellant, and the motion for summary judgment should be granted in all respects. Settle order.
Dissenting Opinion
(dissenting). The refunds, not made until 1948, were not due to any state of facts in existence when the agreement was made or the corporate tax return was filed, but concededly were due to losses suffered by the corporation in later
Plaintiff’s unilateral interpretation of the agreement reads into the agreement an intention that is not expressed. To determine the real intention of the parties a plenary trial should be had, and summary judgment denied.
. Accordingly, I dissent and vote to aflirm.
, Callahan, Van Voorhis and Breitel, JJ., concur in Per Curiam opinion; Dore, J. P., dissents and votes to affirm, in opinion, in which Cohn, J., concurs.
Order, so far as appealed from, reversed, with $20 costs and disbursements to the appellant and the motion for summary judgment granted in all respects. Settle order on notice.