176 A.D. 711 | N.Y. App. Div. | 1917
Lead Opinion
The purpose of this action is to enforce an alleged agreement between the six plaintiffs and the defendant de Mossin to the effect that all of the stock of the Victoria Oil Company held by said plaintiffs and defendant should be deposited and held by the New York Trust Company, to be used and dealt with by a syndicate directed by the plaintiff Waters who was designated as “syndicate manager.”
The original syndicate agreement, which was in writing, was dated October 28, 1915, and was by its terms to continue in force until July 1, 1916, unless Waters should sooner release the stock and direct its redelivery to the depository stockholders. Several other written agreements were subsequently made, the result of which was to extend the syndicate agreement to December 31, 1916.
The present action is based upon the allegation that on October 26, 1916, a verbal agreement was made by all of the depository stockholders including the defendant de Mossin that the deposited stock should continue to be held under said syndicate agreement for a period of six months from and after January 1, 1917.
It is manifest that the court should not interfere by in june tion to prevent a person from exercising control over his own property, in consequence of an alleged agreement to commit the control thereof to another, unless the agreement is clearly and unequivocally proven and, therefore, to justify the issuance of the injunction which plaintiffs ask it must be clearly shown that de Mossin did, in fact, agree that his stock should remain on deposit and under the control of the syndicate manager after January 1, 1917, when the last written agreement, by its terms, expired.
The complaint does allege, in explicit terms, that on October 26, 1916, all of the plaintiffs, and the defendant de Mossin did so agree.
When we come to examine the affidavits used to support the motion for an injunction pendente lite we find that they fall short of alleging a definite agreement on the part of de Mossin. The most they say is (and they all agree on this point) that a meeting of the depository stockholders was held at which the extension of the syndicate agreement was discussed and that de Mossin, as well as plaintiffs, stated that they were “willing and desirous” that the deposit of stock should extend beyond January 1, 1917. This is by no means equivalent to an allegation that defendant then presently agreed that the syndicate arrangement should be extended. It suggests no more than the expression of a willingness to make such an agreement— a willingness which so far as appears never crystallized into an actual agreement. There are two circumstances in the case that seem to make it reasonable that the allegation should be read in the latter sense. One is that the parties had been careful to reduce all earlier agreements on the subject to formal writings, and no reason is shown why, on this last occasion, they should have contented themselves with an oral agreement. From the circumstance that the conversation at which defendant de Mossin is said to have expressed himself as “willing and desirous” to extend the
The second circumstance is that when in February, 1917, de Mossin sought to withdraw 10,000 shares of the stock from the stock company, the plaintiff Waters, the syndicate manager, consented thereto. He offers no explanation why he did this, but a very plausible explanation is that he did not then consider that de Mossin had ever actually agreed to continue the deposit.
We cannot escape the conclusion that the allegation so often repeated in the moving affidavits that de Mossin stated that he was “willing and desirous” to extend the syndicate agreement was drawn with careful intention, and that any allegation that de Mossin actually agreed was omitted with like care. The gentlemen concerned in the case for the plaintiff, both as principals and attorneys, are intelligent and skillful and can scarcely be accused of using language carelessly. They must have known that in order to entitle themselves to an injunction it was necessary to show that de Mossin actually agreed to extend the syndicate, and they must have also been aware that an actual agreement was not proved by evidence of an expression of willingness to make an agreement.
As has been said, it is a serious matter to deprive a man, against his will, of the beneficial use of his property, and the court should not lend itself to an effort to do this except upon clear and unequivocal evidence that he had agreed to be so deprived. The evidence on that subject submitted by the plaintiffs is neither clear nor unequivocal.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Smith and Sheabn, JJ., concurred; Clarke, P. J., and Laughlut, J., dissented.
Dissenting Opinion
I dissent. The complaint, verified by one of the plaintiffs, alleges positively as matter of fact, “ That on or about October
Waters’ affidavit states: “ That on or about the 26th day of October, 1916, there was a meeting of all of the members of Syndicate No. 3, with the exception of the plaintiff Palmer. This meeting was held at the office of the Victoria Oil Company, No. 25 Broad Street, Borough of Manhattan, City of New York. There was considerable discussion about the affairs of the syndicate, and among other things, the question of continuing the deposit of the stock with the New York Trust Company was discussed.
“ It is my recollection that Mr. Buchler, who is an attorney and counsellor at law, asked each of those present whether he was satisfied to continue the deposit of the stock of the syndicate in the New York Trust Company for another period of six months, beginning January 1, 1917, upon the same terms, and each of us, including the defendant de Mossin, then and there stated that we were willing and desirous that the deposit of said stock should continue for a period of six months beginning January 1, 1917, and that the syndicate should likewise continue.”
On February 10, 1917, a certificate of 10,000 shares made out in the name of de Mossin and part of the shares deposited was presented at the office of the company and inquiry was made whether said certificate constituted good delivery. The affidavit continues: “ The defendant de Mossin withdrew this stock contrary to the agreement made by him at said meeting on October 26, 1916, whereby he expressly' agreed, together with all other members of the syndicate, to continue the deposit of said stock for a period of six months from January 1, 1917. It is clear, therefore, that the defendant de Mossin has already broken his agreement by withdrawing said 10,000 shares of stock, and that he undoubtedly intends to further break said agreement by attempting to withdraw from the New York Trust Company the balance of the stock standing in his name and to throw the same upon the market for sale. This would be in direct violation of his express agreement.”
These statements are specifically corroborated and reiterated by the plaintiffs Robinson and Grilmore.
Reilly, the secretary of the Victoria Oil Company, avers: “ I distinctly recall that all of the gentlemen present, including Mr. de Mossin, stated that each was willing to continue the deposit of the Syndicate stock with the New York Trust Company for a period of six (6) months beginning January 1, 1917.” To this the.defendant makes the bald denial: “Deponent further states that at no time did he ever acquiesce, agree to or enter into any such understanding or agreement for pooling or leaving his stock beyond the above-mentioned date of December 31, 1916.”
It seems to me that where the whole purpose of the action is to prevent the destruction of the syndicate and the breach of the agreement which would cause irreparable damage to the plaintiffs, the company, and other stockholders who had deposited their stock on the faith of the syndicate agreement, where the complaint positively alleges the agreement and five affida
I think the order appealed from should be reversed and the injunction granted.
Laughlin, J., concurred.
Order affirmed, with ten dollars costs and disbursements.
