Frankel v. Tremont Norman Motors Corp.

• Decision Date: 07 December 1959
• Citation: 21 Misc.2d 20,193 N.Y.S.2d 722
• Parties: Martin W. FRANKEL, Plaintiff, v. TREMONT NORMAN MOTORS CORP. and Israel Ross, also known as Sol Ross, Defendants.
• Court: New York Supreme Court

Page 722

193 N.Y.S.2d 722

21 Misc.2d 20

Martin W. FRANKEL, Plaintiff, v. TREMONT NORMAN MOTORS CORP. and Israel Ross, also known as Sol Ross, Defendants.

Supreme Court, Special and Trial Term, Bronx County, Part VIII.

Dec. 7, 1959.

Bernard E. Epstein, New York City, for plaintiff.

Robert Moers, New York City, for defendants, Melvin Howard Osterman, New York City, of counsel.

HAROLD BAER, Justice.

This is an action for specific performance of an agreement transferring an automobile agency. The plaintiff relies on a written instrument dated July 23, 1959 (Plaintiff's Ex. 1) allegedly prepared by the parties without aid of counsel. The original defenses to the action are threefold: That there were conditions precedent to the effectiveness of the agreement, to wit, the consent of the wife of the individual defendant and that the plaintiff consummate a sale of defendant's on hand stock of new 1959 automobiles; that the written agreement is incomplete in that it fails to provide for assumption of lease liability by the plaintiff purchaser; that said agreement is incomplete and unenforceable because, among other things, it fails to provide for disposition of the stock of automobiles on hand and makes no termination or other disposition of an existing employment contract between the parties.

At the trial defendant amended the answer to include two additional affirmative defenses, the statute of frauds (Personal Property Law, § 85, Real Property Law, § 259), and that two-thirds of the stockholders of defendant corporation did not approve the proposed sale (Stock Corporation Law, § 20).

The agreement signed by both parties, in summary, sets forth that the defendant corporation will sell and give clear title for $3,500 of all of its physical assets, 'such as all fixtures, parts, signs, tools, furniture, etc., with the exception of 18 radios and all current unsold 1959 Dodges and Plymouths'. It then provides for the transfer of the lease to the premises involved and that the seller will vacate the premises the following evening; that seller will cancel its selling franchise with the Chrysler Corporation; and that purchaser will pay to seller any security that seller had deposited with the lessor and with various utility companies. Plaintiff delivered to defendant a certified check in the amount of $3,500.

A careful review of the testimony and the agreement in evidence results in the conclusion that the writing is a complete agreement. The contentions raised by the defendant as to the incompleteness of the agreement do not find support either in law or in the facts of this case.

Unless a contract is ambiguous or vague in its terms the intention of the parties must be gleaned from the four corners of the instrument. A court may not rewrite into a contract conditions the parties did not insert. The intent of the parties must be distilled from the terms of the written agreement itself (Raner v. Goldberg, 244 N.Y. 438, 155 N.E. 733; Nichols v. Nichols, 306 N.Y. 490, 119 N.E.2d 351; Williston on Contracts, Rev. ed., § 610). The court may not supply terms to an agreement under the guise of construction or interpretation. The court's power is limited to giving effect only to the parties' expressed intent (Friedman v. Handelman, 300 N.Y. 188, 194, 90 N.E.2d 31, 34; Matter of Loew's Buffalo Theatres, 233 N.Y. 495, 501, 135 N.E. 862, 864; Wilson Sullivan Co., Inc. v. International Paper Makers Realty Corp., 307 N.Y. 20, 119 N.E.2d 573). As was stated in Raleigh Associates v. Henry, 302 N.Y. 467, at page 473, 99 N.E.2d 289, at page 291: '* * * we concern ourselves with what parties intended, but only to the extent that they evidenced what they intended by what they wrote.'

Appropos the defense relative to the statute of frauds, it should be noted that in certain instances, notwithstanding the existence of a writing, parol evidence is admissible to furnish alleged missing terms of an agreement (cf. Poel v. Brunswick-Balke-Collender Co., 216 N.Y. 310, 314, 110 N.E. 619, 620; N. E. D. Holding Co. v. McKinley, 246 N.Y. 40, 45, 157 N.E. 923, 924). Defendants have had such an opportunity here and I find that they have wholly failed to prove that the writing (Plaintiff's Ex. 1) is incomplete.

There is no doubt that the parties read, understood and signed this agreement. A signer of an instrument expressive of a jural act is conclusively bound thereby (Pimpinello v. Swift & Co., 253 N.Y. 159, 170 N.E. 530). The defendant was anxious to sell this business and in fact had inserted an advertisement in the New York Times for that very purpose. The plaintiff was anxious to buy the business. The defendant changed his mind and it will serve no purpose to speculate on the reasons. Once having signed this agreement he can not come forward at this time and say that this was only part of the understanding between the parties.

If there was a condition precedent to this agreement (Plaintiff's Ex. 1) there would be no effective agreement until the happening of the condition (Williston on Contracts, Rev. ed., § 666a and notes, p. 1913). The defendant Ross' contention that the obtaining of his wife's approval for the sale of the business was such a condition is incredible. The testimony in this case clearly shows that at all times Ross was in full control of the business and ran it without any interference or participation whatsoever by his wife. Likewise, it is not believable that the sale of the on hand stock of 1959 cars to a third party was a condition precedent orally agreed upon before the execution of the written instrument. The agreement itself specifically excepts, 'all current unsold 1959 Dodges and Plymouths'. If their sale was a condition precedent there is no explanation why the contract did not so state. There was no reason for excluding any arrangement for the disposition of these cars. More importantly, there is evidence from which it may be reasonably inferred that the defendant wished to sell the cars independently so as to avoid loss of rebates received from previous sales. Any bulk sale to another dealer or return to the Chrysler corporation would have resulted in a financial loss to the defendant Ross.

Defendant's further defense that the agreement was incomplete because it failed to provide for an assumption agreement of the lease is, likewise, untenable. The plaintiff once in possession would be liable for rent (Mann v. Ferdinand Munch Brewery, 225 N.Y. 189, 121 N.E. 746). The evidence in this case clearly shows that the plaintiff has always been and still is ready, willing and able, to assume the lease and all the obligations contained therein. This was the very purpose for which he appeared at the offices of the landlord on July 24, 1959. Moreover, under the very terms of the lease (Par. 23, Defendant's Ex. B), the plaintiff, as an assignee would be bound to assume in writing all the terms, covenants and conditions contained therein. The defendant Ross, in refusing to go through with the deal, prevented the plaintiff from executing the necessary assumption agreement the day the parties were to appear at the landlord's office. It is axiomatic that an expressed covenant made by an assignee to assume the lease binds him thereafter by privity of estate as well as privity of contract with the landlord (Hart v. Socony-Vacuum Oil Co., 291 N.Y. 13, 16, 50 N.E.2d 285, 286, 148 A.L.R. 390; Dassori v. Zarek, 71 App.Div. 538, 75 N.Y.S. 841).

While it is true that the agreement is silent as to the then existing employment contract between the plaintiff and the corporate defendant, it must...