Robinson v. Jewett

• Decision Date: 08 October 1889
• Citation: 22 N.E. 224,116 N.Y. 40
• Parties: ROBINSON v. JEWETT.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 40

22 N.E. 224

ROBINSON

v.JEWETT.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from a judgment of the general term of the first judicial department, affirming a judgment in favor of the defendant entered upon a report of a referee. The action was brought to recover one-fifth of the net profits of the Fortieth-Street Stock-Yards in New York city during the period from September 1, 1877, to October 1, 1878, and was founded upon the following alleged contract:

‘Whereas, Charles Robinson has leased from Charles E. Appleby certain lands and premises situated upon Thirty-Ninth, Fortieth, and Forth-First streets and Eleventh avenue, in the city of New York, for the term of ten years from May 1st, 1875, at the annual rent of $21,370 and taxes, as by reference to said lease will appear; and whereas, on the 28th day of May, 1875, the said Charles Robinson entered into an agreement with the National Stock-Yard Company, a corporation duly organized and existing under and by virtue of the laws of the state of New Jersey, for the assignment to said company of said lease; and whereas, the Erie Railway Company, a corporation duly organized under the laws of the state of New York, has become largely interested in said National Stock-Yard Company, and thereby in said lease: Now, therefore, it is hereby agreed between said Robinson and said Erie Railway Company as follows: First. That said Robinson will assign to said National Stock-Yard Company, whenever requested by resolution of its board of directors, or upon request of the Erie Railway Company, so to do the said lease, with proper covenants and conditions to secure the payment of the rent of said premises, and the security and indemnity of him, said Robinson, by forfeiture of said lease or transfer in the event of failure to pay said rent by said assignee or otherwise. Second. That the Erie Railway Company, or the receiver of said company, guaranties the payment on the part of said National Stock-Yard Company of the rent and taxes of said premises, as provided for in said lease; and that said company, their successors or assigns, will assume and perform all the obligations assumed by said Robinson in said lease. Third. That said Erie Railway Company, or said receiver of said company on its behalf, guaranties to said Robinson from the date of said transfer the payment by said National Stock-Yard Company of one-fifth of the net profits arising from the business to be carried on upon said premises, or from their use or occupancy; and to arrive at said amount it is agreed that accurate books of account shall be kept of the business transacted at or upon said premises and received for their use and occupancy; that balance sheets shall be made up, and settlements and payments made in accordance therewith, semi-annually, viz., on the first day of August and the first day of February of each year.

‘In witness whereof, the party of the first part hath hereunto set his hand and seal, and the party of the second part hath caused its corporate seal to be hereunto affixed, and these presents to be subscribed by its president, and the receiver of the said Erie Railway Company, the party of the second part, hath also set his hand and seal in his capacity as such receiver, the day and year first above written.

[Signed] ‘CHARLES ROBINSON. [L. S.]

[Signed] ‘H. J. JEWETT,

‘Receiver Erie Railway Company.

[Seal of Erie Ry. Co.]

‘In presence of

[Signed] ‘C. G. BARBER.

Attest: ‘A. R. MACDONOUGH, Secretary.’

The referee found as a fact that there were no profits earned, and dismissed the complaint. Further facts appear in the opinion.

Joseph H. Choate, for appellant.

William B. Shipman, for respondent.

BROWN, J., ( after stating the facts as above.)

If it was necessary to the determination of this case to decide whether the evidence showed that profits were earned at the premises described in the lease to the plaintiff during the period mentioned in the complaint we should feel constrained to differ with the learned referee upon that question of fact, and hold that the undisputed testimony was that profits were earned. The guaranty was ‘of one-fifth of the net profits arising from the business to be carried on upon said premises, or from their use and occupation,’ and it appears without dispute that during the period covered by this action nearly 600,000 hogs were unloaded from the cars of the New York Central & Hudson River Railroad Company at said premises, and for such use of the property nearly $48,000 was paid by said railroad company to the Union Stock-Yard & Market Company. This sum was largely in excess of the expense of the maintenance of the yards, and such excess represented net profits for the use of the yards. The guaranty was not limited to the profits earned by the National Company, but included all that accrued from the business carried on on the premises, or from their use and occupation, and therefore embraced in its terms the profits earned by the Union Stock-Yard & Market Company, which, during the period in question, used the property jointly with the National Company. It is of no consequence that the money paid by the railroad company was not paid at the stock-yards, nor that the stock-yard company, after its receipt from the railroad company, paid it into a pool with receipts from other railroads for the use of other stock-yards. The fact remains that it was a receipt for the use of the stock-yards in question. And this conclusion is not weakened because the precise relations existing between the New York Central & Hudson River Railroad Company and the Union Stock-Yard & Market Company were not shown on the trial. It was shown that a place to unload the stock was a necessity to the proper discharge of this branch of the railroad business, and that the New York Central & Hudson River Railroad Company had no other place in the city of New York to unload the hogs carried upon its road, and used and occupied the premises in question for that purpose; that during the period covered by the suit it paid to the Stock-Yard & Market Company a sum equivalent to eight cents a head for every hog discharged at the Fortieth-Street yards. This evidence was certainly sufficient to make out a prima facie case for the plaintiff, in the absence of any testimony tending to contradict it, or destroy its force, and admitted of no inference other than that the money so paid was paid for the use and occupation of the premises in question. Inasmuch, however, as we think the judgment must be affirmed on other grounds, it is unnecessary to state more fully the reasons for our conclusions as to this branch of the case.

It is claimed by the respondent that the contract upon which the action is founded is without any valid consideration, and this point, we think, is fatal to any recovery on the part of the plaintiff. It appears that prior to April 8, 1875, the copartnership of Allerton, Dutcher & Moore were the lessees of the premises known as the ‘Fortieth-Street Stock-Yards,’ and at and prior to that date the National Stock-Yard Company was in the occupation and possession thereof jointly either with said copartnership or with the Union Stock-Yard & Market Company.

The evidence does not show when the Union Stock-Yard Company was incorporated. It appears, however, to have been in existence in the month of May, 1875, and probably succeeded to the business of Allerton, Dutcher & Moore; and its organization, if not completed, was contemplated by the parties at the time of the lease to the plaintiff. The lease to the copartnership expired on May 1, 1875; and on April 8, 1875, the plaintiff took a lease in his own name for the premises from Charles E. Appleby, for the term of 10 years, at an annual rent of $21,370, besides taxes and assessments. At that time the plaintiff was a large stockholder in the National Stock-Yard Company and a director and president thereof, and had been president since January, 1870. On May 28, 1875, at a meeting of the board of directors of said stock-yard company, called by order of the plaintiff as president, and at which he was present and presided, the following resolution was adopted: ‘Whereas, Mr. Charles Robinson, for the benefit of this company, has taken a half (1/2) interest in the lease of the West Fortieth street yards: Resolved, therefore, that the same be assumed by the National Stock-Yard Co., and that Mr. Robinson assign his interest in the lease to this company.’ On the same day the plaintiff executed an instrument, the parties to which were declared to be the plaintiff, the Union Stock-Yard & Market Company, and the National Stock-Yard Company. It recited the lease from Appleby to the plaintiff, and that ‘said lease of said...