(7 App. Div. 242.) SOOYSMITH & CO. v. VENNER. (Supreme Court, Appellate Division, First Department. June 29, 1896.) CONTRACTS-INTERPRETATION. Defendant, in constructing a well, had sunk an iron pipe, 42 inches in diameter, to a depth of 50 feet, terminating in a stratum of quicksand, with a stratum of hardpan below. Being unable to proceed further with the work, defendant employed plaintiff to sink a 38-inch pipe to a proper depth to reach a water-bearing stratum, it being agreed that plaintiff would, "by means of Portland cement or other suitable material, bar out quicksand between the bottom of the present tube and the stratum of hardpan." Held, that such provision required plaintiff only to make the Joint between the 42-inch tube and the 38-inch tube proof against the quicksand, and not to prevent the quicksand from going down the outside of the 38-inch tube, where it passed through the hardpan. Appeal from judgment on report of referee. Action by Sooysmith & Co., a corporation organized under the laws of New Jersey, against Clarence H. Venner. Judgment was rendered in favor of plaintiff, and defendant appeals. Affirmed. The action was brought upon a written contract between the parties to recover the amount agreed to be paid by the defendant for the performance by the plaintiff of the work provided for under the contract. The defense was that the work had not been completed by the plaintiff in accordance with the terms of the contract. The contract was made June 15, 1888, and recited that the defendant was desirous of building a well, to enable the Adrian Michigan Waterworks to supply the city of Adrian with water; that there was a well on the premises of the waterworks, in which there was sunk a boiler-iron tube, 42 inches in diameter, to a depth of about 50 feet below the bottom of the well; that defendant desired to procure an extension of that tube to be sunk down to and into the water-bearing stratum, which was believed to exist at a depth of within 6 or 7 feet below the bottom of the present tube; that it was intended to make such extensions by. means of a 38-inch tube by the pneumatic system; and that the bottom of the present 42-inch tube was in quicksand, and it was believed that at a distance of from 1 to 2 feet there existed a stratum of hard pan from 1 to 2 feet in thickness, and below that there was the water-bearing stratum; and it was agreed that the plaintiff would provide the necessary 38-inch tube of % in thickness iron, and all the appliances and machinery for sinking the same, and sink the 38-inch tube to such proper depth into the water-bearing stratum as in the judgment of plaintiff would best accomplish the result desired, provided, that such depth should not exceed 7 feet below the bottom of the present tube. And that plaintiff would, by means of Portland cement, or other suitable material, bar out quicksand between the bottom of the present tube and the stratum of hard pan. ** * All work to be done in a first-class and substantial manner. * And that upon the completion of the work ** * the defendant would pay the plaintiff the sum of $5,000 in full payment for the work and materials. Under this contract the plaintiff furnished the materials and did the work, but the defendant refused to pay the $5,000, on the ground that the work was not done and completed as required by the contract. Quicksand entered the tube, and filled it up to a considerable depth, and it was claimed this resulted from a failure by plaintiff to complete the work as provided by the contract, or from the improper or negligent manner in which it was done. The plaintiff did so join together the ends of the 42 and the 38 inch tubes as to prevent any quicksand entering at that junction, and the quicksand concededly entered the tube from the lower end of the 38-inch tube in the water stratum; but the defendant claims that the quicksand descended from above the hard-pan stratum, on the outside of the tube, and that it was the duty of the plaintiff, under the terms of the contract, to prevent such quicksand from going down through the space between the tube and the hard-pan stratum, and entering the pipe below the tube through * * * the water stratum. It seems also to be claimed that the filling of the tube with quicksand from below, even, resulted from the improper performance of plaintiff of the work, and the removal of the appliances from the tube and well. The referee held that the proper construction of the contract was that plaintiff should only bar out the quicksand from the tube by securely joining the two tubes together at their junction with each other, and was not required to bar the quicksand from passing down from above the hard-pan stratum, and between it and the tube, into the water stratum, and entering the tube at the lower end of the 38-inch pipe; and that there was no negligence in the performance of the work; and thereupon ordered the judgment in favor of the plaintiff, from which this appeal is taken. Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ. Melville Egleston, for appellant. Frederic B. Jennings, for respondent. WILLIAMS, J. There seems to be no dispute but that the quicksand which filled the tube entered through the bottom of the 38-inch tube in the water stratum. There is dispute as to where the quicksand came from,-whether it was in the water stratum before the 38-inch tube was sunk, or whether it went down from above the hard-pan stratum during the time the work was being done or after it was completed; and whether, if it went down from above the hard-pan stratum, it went down through an opening around and next to the outside of the tube, or through other openings originally existing, or which had been made by defendant while sinking the 42-inch tube, or while making borings to ascertain the condition of things below the bottom of the 42-inch tube. It cannot reasonably be claimed that the duty of the plaintiff to prevent the quicksand from going down from above the hard-pan stratum extended beyond the closing up of any opening around and next to the 38-inch tube, so as to prevent sand going down there. Considering the manner in which the 38-inch tube was sunk, and the work was done, it is quite doubtful whether any opening was left about the tube through which the quicksand could have found its way into the water stratum below, and whether the presence of the quicksand in the tube should not be accounted for in one of the other ways suggested. But, whether this be true or not, there seems to have been no way, considering the manner in which the work was done, in which any opening outside the 38-inch tube, and between it and the hard-pan stratum, could, by the use of Portland cement or other suitable materials, have been closed up. The only place in which such material could have been applied was between the 38-inch and 42-inch tubes by way of making the joints between the two sized tubes firm and solid, so as to prevent quicksand entering the tubes at that point. The connection with the hard pan was necessarily made by sinking the 38-inch tube through it, and there was no way in which material could be applied outside the 38-inch tube so as to strengthen such connection between the tube and the hard pan next to it. The contract could be construed in view of these considerations. It could not well be said that the parties intended the plaintiff should do any act in carrying out the contract which was impossible in the ordinary way in which such work was to be done. The construction of the contract claimed by the plaintiff seems to have been concurred in by the defendant. Underwood, writing for defendant the letter of July 25, 1888, said: * * On taking out the sand, the joint between the 42 and 38 inch pipe, which was a part of your contract to make, was found to be gone, and this accounted for the presence of the sand in the tube. I want nothing but what is fair, but I want to know that the tube is tight; that the joint is well made, so that the sand won't come in; and there is no way of ascertaining that fact without making a test of the tube with the air taken off. *** The very object of the tight joint was to keep out the quicksand just above the hard pan, as you will see by referring to the contract." In view of the suggestions here made, and of the reasons stated by the learned referee in his opinion, we regard the construction given by the referee to the clause of the contract in question as the proper one, and we see no reason to doubt the correctness of the decision made in the case. We concur in the conclusion arrived at by the referee that the proofs failed to establish any negligence on the part of the plaintiff in the performance of the work, rendering it useless and of no value. The judgment appealed from should be affirmed, with costs. All concur. (7 App. Div. 223.) SCHIFFER et al. v. LAUTERBACH et al. (Supreme Court, Appellate Division. First Department. June 29, 1896.) SPECIFIC PERFORMANCE-PLEADING. In an action for specific performance, it appeared that the plaintiffs and defendants' testator had entered into a written contract of partnership, described in the complaint as "Schedule A," subdivision 15 of which provided that if any of the parties should die during the term, and his representatives should elect to terminate the partnership, the surviving partners should have the right to purchase his interest at a valuation shown by the books, and on certain terms of payment. Defendants' testator having died, defendants gave notice that they intended to terminate the partnership, and plaintiffs gave notice that they would purchase testator's interest. The parties being unable to agree as to the value, a writing known as "Schedule C" was prepared, but never became effective, because it was not executed by all the parties. The complaint alleged that an attempt was made to ascertain the value of testator's interest, but defendants made an excessive claim, whereupon negotiations followed which matured into an agreement (Schedule C). The relief asked for was the enforcement of Schedule C, and of subdivision 15 of Schedule A. Held, that the action was for specific performance of both agreements, and the fact that Schedule C is not a complete contract did not preclude plaintiffs from obtaining the relief asked as to Schedule A. Appeal from special term, New York county. Action by Herman Schiffer and Alfred Schiffer against Edward Lauterbach and others. From a judgment entered on a decision dismissing the complaint, plaintiffs appeal. Reversed. The action was brought to compel the specific performance of contracts. May 18, 1888, the plaintiffs and the defendants' testator entered into a copartnership under a written agreement, a copy of which is annexed to the com plaint, and known as "Schedule A." The firm name was Pelgram & Meyer, and the business to be carried on was the manufacture and sale of silk goods, ribbons, and similar merchandise. The term of the co-partnership was five years, commencing June 1, 1888. The defendants' testator contributed as capital to the common stock, so called, $175,000, and the plaintiff's contributed a like sum. The defendants' testator also conveyed to the co-partnership the real property formerly owned by himself, or by the firm of Pelgram & Meyer, at the agreed valuation of $181,047.34; the machinery, fixtures, and appliances, and leasehold interest, at the agreed valuation of $315,000; the raw material, stock on hand, and manufactured goods, the value to be ascertained by inventory, at actual cost; and also all other assets on hand, cash, book accounts, etc. The conveyance of the property was subject to existing indebtedness by mortgage and otherwise. The amount of the net value of such property and assets over and above all the indebtedness was to be ascertained June 1, 1888, and to be considered as surplus capital contributed by defendants' testator. The parties were to be equal partners, the plaintiffs having one-half interest, and the defendants' testator one-half; and they were to receive 6 per cent. interest on the amount of common and surplus capital contributed by them, respectively, to be charged as an expense of the business. It was further agreed that when Aubrey E. Meyer, a son of defendants' testator, became 21 years of age, he should be admitted as a partner in the business, with such interest as his father should give him out of the capital contributed by the father to the co-partnership, and that the son should have a salary of $1,500 per year, to be charged to expense account, and in case the defendants' testator died before the son, Aubrey, became a member of the firm, the son should have the same rights in the firm as though he had been a member, and had become at his father's death a surviving partner. There were other provisions of the agreement which it is unnecessary to refer to here, and then, by subdivision 14, it was provided, in brief, that, if any of the parties should require the co-partnership to terminate at the end of the five years, they should, not less than six months before the expiration of the five years, serve upon all the parties a notice in writing subscribed by them, to that effect, and if no such notice should be served the term should be continued for another five years, and if no notice should be served at the end of the ten years the term should be again continued for another five years; and by subdivision 15 it was provided, in brief, that if any of the parties should die before the termination of the co-partnership, as created or extended, and the representatives of the deceased partner should elect to terminate the co-partnership as provided in the agreement, the surviving partners should have the right to purchase all the interest of the deceased partner in the property and business at a valuation shown by the books, deducting 25 per cent. upon the value of machinery, and should pay for the same in yearly installments of $50,000, with interest on the unpaid balance at 41⁄2 per cent., and secure such payment by a mortgage on the property. After the commencement of the co-partnership, and August 24, 1888, the defendants' testator died, leaving a will wherein he appointed defendants executors, and they qualified, and have since acted as such. The business was continued until the end of the first five years. After the death of the defendants' testator, his son, Aubrey, asserted his right to become a member of the firm under the agreement A. Differences arose between him and plaintiffs and the other defendants as to their respective rights. Litigation resulted, and finally, on June 30, 1890, an agreement was entered into, a copy of which is annexed to the complaint, and is known as "Schedule B." By this agreement it was provided that the plaintiffs should be regarded as the sole surviving partners of the firm, and Aubrey, the son of defendant's testator, relinquished all his right to be a surviving partner, and to any interest in the firm as a partner; and it was agreed that the plaintiffs should continue the business as sole surviving partners until the end of the term, and that the plaintiffs should pay the son, Aubrey, every year after July 1, 1889, during the term of the co-partnership, the sum of $3,000, in installments of $1,500 each, payable January and July, so long as he lived, under certain conditions; that the son Aubrey might enter into the same kind of business, but should not use the firm name of Pelgram & Meyer, during the term of this co-partnership, except that he should have the sole right to the use of such firm name after May 31, 1893, the end of the first five years, in case he should commence business and use such firm name within nine months thereafter, and should give six months' notice of his intention to use such firm name. There were other provisions in this agreement which it is not necessary to refer to here. November 28, 1892, the defendants, pursuant to subdivision 14 of the agreement A, gave notice in writing to the plaintiffs that they intended to terminate the co-partnership at the end of the first five years. May 29, 1893, the plaintiffs gave notice to the defendants, in writing, that they would purchase the rights of the defendants' testator in the business and property, pursuant to subdivision 15 of the agreement A. The defendants seem to have acquiesced in the right to so purchase, and thereupon the parties proceeded to ascertain the amount to be paid for such interest. An inventory was made, but there was disagreement as to whether the amount arrived at, as the sum to be paid by the plaintiffs, was correct, and as to other details in perfecting the sale and securing the purchase money. Negotiations were then entered upon between the plaintiffs and some of the defendants as to an agreement for the settlement of their differences, and such negotiations were continued for some time. An agreement in writing was finally formulated, a copy of which is annexed to the complaint, and is known as "Schedule C." This written agreement bears date in January, 1894. It was never signed by defendant Ida Meyer or defendant Aubrey E. Meyer. It was signed by defendants Lauterbach and Lowenstein, who were satisfied with its terms, but it was never delivered at all by any of the defendants. The plaintiffs alleged in their complaint that this agreement was made about March 21, 1894. The defendants denied that it was ever made, executed, or delivered at all, or that it ever became a binding agreement upon the defendants. The plaintiffs sought to compel specific performance of this agreement, or a parol agreement to the same effect, or that defendants be compelled to carry out the provisions of subdivision 15 of the original agreement A. The defendants alleged their willingness at all times to carry out the terms of subdivision 15 of the original agreement A, but that the plaintiff's had entirely failed to comply with such terms themselves. The court held that the agreement C was never made, executed, or delivered, and that no agreement by parol to the effect therein stated was entered into between the parties, and the same therefore could not be ordered to be specifically performed. The court held that there was but one cause of action alleged, and that was one to compel specific performance of an agreement, the provisions of which were contained in the agreement C, and that no relief could be afforded, based upon the provisions of subdivision 15 of the agreement A, the plaintiffs failing as to the agreement C. The court dismissed the complaint upon the merits, with costs, and from the judgment entered upon such decision this appeal is taken. Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and INGRAHAM, JJ. Samuel Untermyer and Louis Marshall, for appellants. WILLIAMS, J. We see no reason to disagree with the learned trial judge as to the conclusion arrived at by him, that the agree ment C was never made, executed, or delivered, and that no agreement to the effect therein contained was actually made and perfected between the plaintiffs and any of the defendants. It is true that the agreement C was negotiated by two of the defendants, and, as formulated, was satisfactory to them; but it seems quite clear that these two defendants never intended to make C a binding agreement by themselves, and without the concurrence of the other defendants, or to make any parol agreement to the same effect, or to make any parol agreement at all, and the plaintiffs did |