poration bonds, and thirty thousand dollars hotel. After the contract had been executof the United Lines Telegraph bonds.” He ed, it was found that the Read stock could also testified that when he gave the other not be purchased, and consequently the main note, or some time between May and August, purpose and consideration of the contract he deposited with the plaintiff $25,000 of the failed. It was under these circumstances Hoffman House bonds, in addition to those that we refused to compel specific performhe had before deposited, so that the plaintiff

Stokes v. Stokes, 148 N. Y. 708, 43 had $125,000 of the Hoffman House bonds N. E. 211. It is possible that, owing to the and $30,000 of the United Lines Telegraph failure of the principal part of the considerabonds as against these loans. It will here tion of the contract, it should be held to be be observed that the defendant has neglect- abrogated as a whole, a question which we ed to state that the bonds were not deposit- do not now determine; but, if we should ed for other purposes as well as for the loans so treat the contract, it would not affect the made. The next bit of evidence introduced question under consideration in this case, was the contract between the plaintiff and or relieve the defendant of the burden asthe defendant, dated the 18th day of August, sumed by him when he attempted to prove 1891. The defendant was then asked the his defense or counterclaim. The loans following question by his own counsel: made upon the notes in suit and the obliga“Were those one hundred and twenty-five tions of the defendant to the plaintiff, inthousand dollars worth of bonds deposited curred by indorsing the Read notes and the by you with the plaintiff as collateral for deposit of the Hoffman House bonds as col. any other debt, or for any other purpose, lateral, all took place before the agreement than for those notes, and whatever is stated was made. This the defendant concedes in in this agreement?” The witness answered: his testimony, and the only question with "I would like to premise my answer some reference thereto is as to whether the bonds what by explaining. Those bonds were de were deposited with the plaintiff as colposited, as I previously stated, previous to lateral security for the defendant's liability the agreement of August 18, 1891." His upon the Read notes, or as collateral to the counsel then repeated the question, and he notes in suit alone. In determining this answered: "I allowed them to remain with question, the affirmative was with the dethe plaintiff for that purpose, and for no fendant. As we have seen, he has failed to other purpose.” The purpose specified in show that the bonds were delivered to the the question was for the notes in suit and plaintiff as collateral security for the pay"whatever is stated in the agreement." Up ment of the notes in suit, and for no other on referring to the agreement, we find that purpose. The trial court therefore properly the bonds were held as security, not only directed a verdict against him for the for the payment of the notes, but for any amount conceded to be due upon the notes. obligation of Edward S. Stokes to W. E. D. The judgment should be affirmed, with costs. Stokes, connected with Read, and as against any foreclosure of the mortgage. As we MARTIN, J. (concurring). Three opinions have already seen, the defendant was liable having already been written in this case I shall to the plaintiff upon two notes, made by content myself with a brief statement of the Cassius H. Read, amounting to $25,000, reasons which lead me to the conclusion which had been indorsed or guarantied by that the judgment should be affirmed. the defendant. This is all the evidence given It is apparent that the case of Stokes v. upon the subject. We think the defendant Stokes, 148 N. Y. 708, 43 N. E. 211, cannot failed to show that the bonds were held by be given the effect claimed for it by the the plaintiff as collateral for the payment of present appellant, and accorded to it in the the notes, and for no other purpose, and that opinions which favor a reversal. The only he consequently failed to establish his de question actually involved in that case was fense or counterclaim.

whether, under the circumstances proved, It was contended upon the argument that specific performance ought to be decreed. the determination of the former action It arose upon the then defendant's countershould control the disposition of this case. claim, by which he sought to compel the In that case, as we have seen, specific per plaiutiff in that action to specifically perform formance of the contract was sought, which the contract of August 18th, by depositing required Edward S. Stokes to deliver to Wil with him $25,000 of bonds, in addition to liam E. D. Stokes an additional $25,000 par the $155,000 already deposited with him. It value of the Hoffman Herise bonds, as fur. was understood by the parties, when they enther collateral security for the obligations tered into that contract, that William could mentioned in the contract. In that case it probably purchase from Read his stock, appeared that one of the chief objects which which consisted of 1,963 shares. That he the parties sought to accomplish was the was unable to do. He was thus relieved purchase of the Read stock, so that the par from the investment of a large amount of ties, William and Edward, could together be money which would have been required for the owners of the whole stock of the Hoff the purpose if he had been able to make the man House Corporation, and, as such own. contemplated purchase. That the securities ers, could operate the Hoffman House as an which he held were abundantly sufficient to

indemnify him against any liability, actual 127 N. Y. 212, 27 N. E. 841; Barnard v. Gantz, or contingent, which then existed by reason 140 N. Y. 253, 35 N. E. 430; Cook v. Railroad of that contract, was obvious. Under those Co., 144 N. Y. 117, 39 N. E. 2; Bloom v. Loan circumstances, this court held that specific Co., 152 N. Y. 119, 46 N. E. 166; Foster v. performance ought not to be decreed, and Bookwalter, 152 N. Y. 168, 46 N. E. 299. that the general term erred in reversing the There was no abuse of the discretion possessed judgment of the special term, which dis by the trial court. In that case, as it was unmissed both the plaintiff's complaint and necessary, it would have been clearly ineqthe defendant's counterclaim. Obviously, uitable to require the defendant to deposit this was upon the ground that the liability the additional $25,000 in bonds, and hence the of William was less than was originally con trial court was justified in dismissing the countemplated, and hence did not require the de terclaim; and the general term was not auposit of any additional security to complete thorized to reverse its determination. Therelg indemnify him. Under the circumstances, fore this court properly reversed the decision the discretion which rests in a court of of the general term, and directed judgment equity in determining whether specific per absolute for the defendant. Thus, it is seen formance shall be granted or withheld plain that the decision of this court in that case ly authorized the court to refuse the decree did not involve the validity or effect of the sought. The right of specific performance agreement between the parties, but only rests in the judicial discretion of the court, whether, under the circumstances proved, Edand may be granted or withheld upon a ward should be required to specifically perform consideration of all the circumstances, and it by depositing the additional $25,000 of in tbe exercise of such discretion. Seymour bonds. Whether the bonds in the possession 1. Delancy, 6 Johns. Ch. 222; Margraf v. of William might be held by him as collateral Muir, 57 N. Y. 155; Miles v. Iron Co., 125 security for the purposes mentioned in the N. Y. 294, 297, 26 N. E. 261; Gotthelf v. contract of August 18th was not involved, Stranahan, 138 N. Y. 345, 351, 34 N. E. 286; and therefore the judgment in that case has no McPherson v. Schade, 149 N. Y. 16, 21, 43 bearing upon the question now before us. It N. E. 527; Heller v. Cohen, 154 N. Y. 299, neither constituted an estoppel to the plaintiff's 306, 48 N. E. 527. It is a well-established claim that he was entitled to hold the bonds principle relating to this subject that specific in his hands for the liabilities mentioned in the performance will never be decreed where it agreement, nor was it proper evidence upon would be inequitable. It is immaterial that subject. The rule in relation to the eswhether the fact that it is inequitable arises toppel of judgments, as announced by Lord from the provisions of the contract, or from Chief Justice De Grey in the Duchess of Kingexternal facts or circumstances which affect ston's Case, was indorsed by this court in the situation and relations of the parties, Standard v. Hubbell, 123 N. Y. 520, 528, 25 for in either case it may constitute a suffi N. E. 1081. It is as follows: "That neither cient ground for a court of equity to with the judgment of a concurrent or exclusive juhold this peculiar relief, and to leave the risdiction is evidence of any matter which parties to their legal remedy. Seymour v. came collaterally in question, though within the Delancy, 3 Cow. 445; Clarke v. Railroad Co., jurisdiction, nor of any matter incidentally cog18 Barb. 350; Peters v. Delaplaine, 49 N. Y. nizable, nor of any matter to be inferred by 362; Trustees v. Thacher, 87 N. Y. 311, 317; argument from the judgment.” It was said Murdfeldt v. Railway Co., 102 N. Y. 703, 7 by this court in the Stannard Case that that N. E. 404; Day v. Hunt, 112 N. Y. 191, 195, rule had been uniformly accepted by the courts 19 N. E. 414; Conger v. Railroad Co., 120 as an accurate statement of the law; and it N. Y. 29, 32, 23 N. E. 983; Baily V. De was there held that, where an estoppel is Crespigny, L. R. 4 Q. B. 180; Shrewsbury claimed in respect to some fact involved in a & B. Ry. Co. v. London & N. W. Ry. Co., 4 former action, it is only material, relevant, De Gex, M. & G. 115, 6 H. L. Cas. 113; and necessary facts decided in the former acWedgwood v. Adams, 6 Beav. 600, 8 Beav. tion that are conclusive in a second, and that 103.

a judgment does not operate as an estoppel as In reviewing the judgment in the first to iminaterial or unessential facts, even though case, the general term was not justified in put in issue by the pleadings, and directly dereversing it, unless it appeared that the proof cided. Campbell v. Consalus, 25 N. Y. 613; 80 clearly preponderated in favor of a con People v. Johnson, 38 N. Y. 63; Woodgate v. clusion adverse to that reached by the trial Fleet, 44 N. Y. 1; Sweet v. Tuttle, 14 N. Y. court that it could be said with reasonable 405. Again, in Springer v. Bien, 128 N. Y. certainty that it erred in its conclusion. 99, 27 N. E. 1076, it was held that, although Baird y. Mayor, etc., 96 N. Y. 567; Lowery a judgment had been entered in a former acV. Erskine, 113 N. Y. 52, 55, 20 N. E. 588; tion, it did not prevent the relitigation of a Weber F. Bridgman, 113 N. Y. 600, 607, 21 fact litigated and found in such action, which N. E. 985; Aldridge v. Aldridge, 120 N. Y. was irrelevant to the issues therein, and did not 614, 617, 24 N. E. 1022; Devlin v. Bank, enter into, and was not involved in, the final 125 N. Y. 756, 26 N. E. 744; Phenix Iron Co. judgment. A judgment does not operate as 8. The Hopatcong and The Musconetcong, an estoppel in a subsequeut action between

the parties, except as to such facts as are liti gether be the owners of the whole, but that gated and decided, and which have such a re he might be able to purchase only a portion lation to the issue that their determination was contemplated, as is plainly evinced by was necessary to the determination of that the language employed. issue. House v. Lockwood, 137 N. Y. 259, 33 The consideration for the contract of AuN. E. 595.

gust 18th was the mutual covenants and As we have seen in the trial of the former agreements of the parties. The provisions action, the only issue was whether, under to be kept or performed by William have the

circumstances, specific performance been performed by him, except so far as should be decreed. Whether the securities he has been unable to purchase all of the already in the possession of William might 1,963 shares of stock then owned by Read. be held by him as security for the liabilities He purchased all Read would sell. He mentioned in the agreement was not at all

could do no more. As we have already material, or in any way necessary to the seen, the probable impossibility of purchasdetermination of that issue. It was not a ing all of this stock was understood by the relevant or necessary fact to be decided in parties when the agreement was made. But that case. The decision of the court was there was no provision that in that event only to the effect that as William was abun the contract should become invalid or indantly secured against loss by reason of any operative, or that it should not bind the liability of Edward, direct or contingent, it parties as to its other provisions which could would be inequitable to compel the latter to

be performed. To say that there was a deposit the additional security provided for failure of the consideration for this conby the contract, and hence the court would tract is not, I think, correct. Nor do I not accord to him the peculiar relief of spe

understand that this court intended to hold cific performance, but leave the parties to that there was such a failure of the contheir legal remedy. Hence it follows that sideration as to render the contract inoperathe question whether William is entitled to tive. I think the condition which ultimately hold the bonds in his possession as collateral

existed was not only contemplated by the security for the performance of the pro- parties, but that they intended that, in case visions of the contract is an open one, and of the inability of William to purchase the not controlled by the decision in that case. Read stock, the remainder of the contract

As the judgment in the former action be should continue in force. This seems mani. tween the parties was not conclusive against

fest from the provisions and purpose of the the right of William to hold the bonds re agreement, which was to carry on the busimaining in his hands as security for all the ness of managing the hotel, restaurant, and claims provided for in the agreement of

café connected with the Hoffman House, August 18th, I think they may be held for and for the management of the business of all the guaranties contained in that agree the corporation, as well as from the proment, for the loan of the $32,000, for any vision showing that the possibility of his obligation of the defendant connected with being unable to purchase the whole of the Read, including the two notes made by Read,

Read stock was contemplated when the and indorsed or guarantied by the defend agreement was made. ant, amounting to $25,000, as well as against It must be admitted, however, that, in any foreclosure of the mortgage mentioned the opinion in the first case, the judge writtherein. That contract was not so far en ing took a somewhat different view of the tire that the purchase of all of Read's provision as to the purchase of the Read 1,963 shares of stock by William was a stock. But the consideration of that quescondition precedent to the enforcement of tion was merely incidental, and not at all the rights conferred upon him by the pro important or material in determining the visions of that agreement. Indeed, it is issue there presented, which was plainly manifest from the contract itself that the stated by the learned judge as follows. parties contemplated the situation which Ought specific performance, under the ciractually arose as to the inability of William cumstances, to be now decreed?” A mato purchase all the shares owned by Read. jority of the court was of the opinion that This is shown by the portion which states it ought not, and that was the sole question that he is about to purchase of Read the decided. As was said by Vann, J., in Coremainder of his stock, or a portion thereof, lonial City T. Co. v. Kingston City R. Co., with the intent that the parties may be the 154 N. Y. 495, 48 N. E. 900: "It was not owners of the whole, and by the further our intention to decide any case but the one provision that William was to sell and trans before us. * If, as sometimes hapfer to Edward, at the price paid, one-half pens, broader statements were made, by of the whole, or of such portion of the 1,963 way of argument or otherwise, than were shares as he might purchase from Read. essential to the decision of the questions Thus, the contract clearly shows that the presented, they are the dicta of the writer parties intended that William should pur of the opinion, and not the decision of the chase the entire stock held by Read if it court. A judicial opinion, like evidence, is could be done, when the parties would to only binding so far as it is relevant; and,

when it wanders from the point at issue, it graph thereof marked 'Sixthly,' which prono longer has force, as an official utterance.” vides: “Sixthly. And as security for these It seems to me that the only question decid guaranties, for a loan of about $32,000, and ed in the former case was whether specific for any obligation of said Edward S. Stokes performance should be decreed, and that the to said William E. D. Stokes, connected with question now before this court was not in. said Read, and against any foreclosure of volved in that case. Hence I am of the said mortgage, said Edward S. Stokes has opinion that, under the agreement between deposited with William E. D. Stokes bonds the parties, the plaintiff was entitled to hold of said Hoffman House to the par value of the bonds in question to secure all the guar- $150,000,'—the said $125,000 of Hoffman anties and obligations mentioned in its sixth House bonds, and no more, and none other paragraph; that the tender by Edward was thereof, were deposited with, and are still consequently insufficient; and that the judg- held by, plaintiff.” ment appealed from should be affirmed. There is no mistaking the issue made by

the pleadings. The plaintiff asserted the PARKER, C. J. (dissenting). The defend right to hold the bonds, under the agreeant, about May 1, 1891, gave to the plaintiff ment of August 18th, as security for all of bonds of the Hoffman House Association of the purposes described in paragraph "Sixththe par value of $125,000, and of the United ly," while the defendant denied the existLines Telegraph Company of the par value ence of any such right. But the learned of $30,000, as security for the payment of counsel for the respondent has on this rethe notes in suit. Thereafter the parties en view discovered a new issue, one not sugtered into a written agreement which provid- | gested by the pleadings, but born of the ed that the plaintiff should hold the first emergency created by the recent decision of mentioned bonds as security for the pay this court holding that this defendant could ment of such notes, and of two other notes, not be .compelled to deposit the $25,000 of upon which the defendant was an indorser, Hoffman House bonds, which was necessary and as an assurance of the performance of to bring the total amount of the deposit up certain guaranties by the defendant. This to $150,000, as provided in the paragraph of latter contract is dated August 18, 1891, the agreement marked "Sixthly.” Apparand was considered by this court in Stokes ently appreciating the difficulty of persuadv. Stokes, 148 X. Y. 708, 43 N. E. 211; it be- ing the court that a contract without suffi. ing decided toat William E. D. Stokes was cient consideration to support William E. D. not entitled to specific performance there Stokes' claim that he was entitled to have of, because of a failure of performance on put in his possession the $25,000 of Hoffman his part. This action was brought to en House bonds not yet delivered, nevertheforce collection of the notes, for which the less had sufficient consideration to support bonds were first pledged, and the defendant, William E. D. Stokes' claim of right to hold shortly after its commencement, tendered to the bonds actually in his possession under the plaintiff $37,500, being the amount due the very same agreement, and for all the on said notes with interest and costs to that purposes recited therein, counsel urges that date, upon condition that the plaintiff should the decision of the trial court may be upsurrender to the defendant such bonds. held, because of what he asserts to be the The plaintiff refused to accept the tender. failure of the defendant to prove that the Thereupon the defendant answered, alleging bonds were not in the first instance pledged the tender as a defense, and also alleging, for other purposes than the notes of the deby way of counterclaim, that the refusal of fendant. Nothing of the kind was sugthe plaintiff to accept the tender constituted gested by the pleadings. The defendant a conversion of the bonds to his own use. offered no testimony tending in that direcThe plaintiff, in his reply, denied that the tion. No inquiry was made of the defendsecurities described in the answer were de ant on cross-examination that even suggestposited with, accepted and held by, the ed that counsel entertained such an idea. plaintiff solely as collateral security for the There is not a hint of it anywhere in the promissory notes described in the complaint record, and, with the issue well defined, it and answer, and further averred as follows: would be strange, indeed, if the defendant's "Plaintiff alleges, as to the $125,000 of the rights could be cut off by a failure to negaHoffman House bonds: That after the same tive every other possible purpose for which had come into the possession of plaintiff, the bonds could have been made use of as and on or about August 24, 1891, a certain collateral. But assuming that it was incumcontract or agreement in writing and under bent upon the defendant to establish that, seal, bearing date August 18, 1891, was aside from the written agreement of Aumade, executed, and delivered by and be gust 18th, the bonds were deposited with the tween the plaintiff and defendant, the orig. plaintiff as collateral security for the notes inal whereof plaintiff offers to produce and of which the defendant was the maker, and prove upon the trial of this action. That of those notes only, he has met that burden in part performance of said contract, dated fully, as will presently be made to appear. August 18, 1891, and for the purposes there The defendant was the only witness sworn, in recited, and as set forth in that para and he testified that the $30,000 of United


Lines Telegraph bonds and $100,000 of Hoff on that subject as follows: "Second. Oo man flouse bonds were deposited with the and prior to the 9th day of July, 1891, plainplaintiff on or about May 1st, when three tiff was indebted to defendant in the sum of Dotes, aggregating $32,300 in all, were made $36,300, which indebtedness was represented by the defendant, and delivered to the plain- by four promissory notes made by the plaintiff, and that subsequently, between the 1st of tiff, payable to the order of defendant, on the May and the 1st of August, the defendant, ex dates and in the amounts as follows: A note pecting to borrow $4,000 more of the plaintiff, in the sum of $12,300, dated May 1, 1891, made a further deposit of $25,000 of Hoffman payable four months thereafter; a note in House bonds as collateral, so that plaintiff the sum of $10,000, dated May 1, 1891, pay. then held $125,000 of Hoffman House bonds. able four months thereafter; a note in the The defendant further testified as follows: sum of $10,000, dated May 1, 1891, payable I mean the plaintiff had $125,000 of the four months thereafter; a note in the sum Hoffman House bonds and $30,000 of United of $4,000, dated the 14th day of August, 1891, Lines Telegraph bonds as against these payable three months thereafter. On loans;" not "as against” failure to perform about the 10th day of July, 1891, there was guaranties, nor "as against" the loans of paid, on account of the indebtedness repreother people, but was against these loans," sented by sai notes, the sum of $2,000, referring to those already fully described. leaving a balance of $34,300, with interest But defendant's counsel did not stop there. still due and owing the plaintiff. Third. The agreement of August 18, 1891, was then As collateral security for the payment of shown witness, who was asked this ques the aforesaid indebtedness, plaintiff delivertion: "Q. Were these $125,000 worth of ed to the defendant 125 six per cent. first bonds deposited by you with the plaintiff as mortgage bonds of a corporation, organized collateral for any other debt, or for any other under the laws of the state of New Jersey, purpose than for those notes, and whatever known as the 'Hoffman House,' of the par is stated in this agreement? A. I would like value of $125,000, and 30 bonds of the corto premise my answer somewhat by explain-poration the United Lines Telegraph Coming. These bonds were deposited, as I pre pany, of the par value of $30,000, all of viously stated, previous to the agreement of which securities are still in the possession of August 18, 1891. Q. Were these $125,000 the defendant." Thus it appears that the worth of bonds deposited by you with the counsel for the plaintiff and the counsel for plaintiff as collateral for any other debt, or the defendant each requested the court to for any other purpose than for these four find that the original deposit of these bonds notes, and whatever is stated in this agree was for the security of the defendant's ment? A. I allowed them to remain with the notes, and for no other purpose. An exam. plaintiff for that purpose, and for no other ination of both the majority and minority purpose.” There can be no mistake about opinions of this court, when the case was on this testimony, nor the object of it. Its pur review (148 N. Y. 708, 43 N. E. 211), shows pose was to negative any possible claim that that there was no mistake in the minds of there was any other agreement of pledge this court about the situation, and that it than the one which he had described and the was then understood here, as counsel for written agreement of August 18th, to which both parties and the court had understood it his attention was called. The judgment roll below, that these bonds were put up as colin the action of Edward S. Stokes against | lateral for the promissory notes made by William E. D. Stokes was offered in evi. this defendant, and for no other purpose, in dence, and a perusal of the judgment only the first instance, and that there was no served to support the assertion of the plain other modification of the terms of the orig. tiff that the first and only agreement prior inal pledge, except such as was made by to the written agreement of August 18th, the written agreement of August 18th. It is by which the Hoffman House bonds and needless to pursue this subject further, for the United Lines Telegraph bonds were de it is apparent that only one finding on this posited with this plaintiff as collateral, was evidence was possible, viz. that the plaintiff the agreement of May 1st, when the notes never acquired the right to hold these bonds were made. There was apparently no more as collateral security for the payment of any dispute about this question on that trial than other indebtedness than the defendant's on this. The plaintiff in that suit asked the notes, nor for any other purpose, except as court to find: “Third. To secure the notes provided by the written agreement of Aufor $32,000, the plaintiff had, with other se

gust 18th. curities, deposited with the defendant in I have so far omitted reference to the conpledge $125,000 of bonds of the Hoffman tention that the sixth paragraph of the agree House Corporation, secured by a mortgagement, quoted above, is evidence of a prior on the property of the said corporation. De agreement; that the form of it is not one of fendant held no collateral security from the present agreement, but a recital of a past plaintiff to protect the $10,000 or the $15,000 agreement, because it states that, “as senotes made by said Read, and indorsed and curity for these guaranties for a loan of guarantied by the defendant, as aforesaid." about $32,000, and for any obligations of said The defendant requested the court to find Edward S. Stokes with said William E D.

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