114 N.E. 1054 | NY | 1917
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *20 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *22 This is an appeal from the Appellate Division, fourth department, unanimously reversing a judgment of the Erie Equity Term directing that defendant sell and transfer to the plaintiff as administratrix of the estate of her deceased husband, one hundred shares of *23 the capital stock of the corporation known as the Buffalo Specialty Company, at the agreed price of $250 the share, in specific performance of a contract therefor entered into between respondent and the appellant's intestate in his lifetime, by the terms of which appellant's intestate was to execute his promissory note for $25,000, payable $2,500 annually, the stock to remain as collateral security for the indebtedness until it was fully paid.
The contract is not in dispute. The only stock in the corporation not owned by respondent consists of eleven out of five thousand shares. Respondent has entire control of the business; success therein depends largely upon the success of specialties manufactured by secret processes. Appellant's intestate was the general manager of the company. The contract was made on the 1st day of August, 1912, and he died on the 8th day of September, 1912. The order of the Appellate Division provides as follows:
"Ordered, that the judgment so appealed from be and the same hereby is reversed, and judgment directed for the defendant dismissing the complaint, with costs, including the costs of this appeal, and the fifth finding of fact so far as it states `that the said stock has no known or ascertained market value' is hereby disapproved.
"Held, that the plaintiff did not make a case for specific performance or show that she did not have an adequate remedy at law for damages."
As the answer admits in substance that the stock had no market value and that any price placed upon the same has been by private agreement, and as the evidence and the findings fully sustain the allegations of the complaint in this regard, the reasons for the reversal are not clear from the statement of the court below that it disapproves the finding set forth in its order, and holds that plaintiff has not made out a case for specific performance. The necessary inference seems to be that the Appellate Division was not satisfied on the evidence with this finding of the trial court, and by disapproving it *24 intended to leave the appellant without findings sufficient to make out a case for specific performance, because it would not then appear that she did not have an adequate remedy at law. It left undisturbed the findings that the stock of the Buffalo Specialty Company was almost entirely owned by the respondent; that it had a large, special and peculiar value, and that it could not be obtained on the market.
On an appeal from a judgment entered on the decision of the trial court without a jury, the Appellate Division may deal with the evidence as the trial court should have done and may render final judgment accordingly without granting a new trial. (Code Civ. Pro. § 1317; Lamport v. Smedley,
The value of the stock in suit can be ascertained only in the most speculative way. A contract for the purchase of stock freely sold in the market would not be thus enforced, for an adequate remedy at law exists in such cases, but to deny this remedy when the stock has no ascertainable value, is nearly all owned by one man and can be obtained only from him, and only as a favor and for special reasons, would be to deny to appellant the substantial benefit of the contract (Butler v. Wright, supra;Adams v. Messinger,
Respondent urges that relief should be denied for lack of mutuality, because the contract called for the personal promissory note of Waddle for $25,000 as evidence of his indebtedness for the purchase price of the stock and that by his death performance became impossible. But the contract is not one for the personal services of Waddle and did not depend on his continued existence. It was for the payment of money by him and his death did not put an end to the obligation of the parties. (Lorillard v. Clyde,
The contract is not unenforceable for failure to comply with the Tax Law (sections 270-278) relative to taxable transfers of stock. When the stock certificates are actually transferred the seller must stamp them to make an effective delivery in fulfillment of his contract (Bean v. Flint,
The judgment of the Appellate Division should be reversed and the judgment entered upon the decision of the trial court affirmed, with costs in the Appellate Division and in this court.
COLLIN, HOGAN and CARDOZO, JJ., concur; CUDDEBACK, J., dissents; HISCOCK, J., absent.
Judgment reversed, etc.