Simon v. Etgen

• Decision Date: 19 January 1915
• Parties: SIMON v. ETGEN et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 589

107 N.E. 1066

SIMON

v.ETGEN et al.

Court of Appeals of New York.

Jan. 19, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henrietta Simon against Julius Etgen and others, as executors of William H. Burgess, deceased. From a judgment of the Appellate Division (156 App. Div. 920,141 N. Y. Supp. 1146) affirming a judgment for plaintiff, defendants appeal. Affirmed .

Albert Stickney, of New York City, for appellants.

Henry L. Scheuerman, of New York City, for respondent.

WERNER, J.

This is an action to recover damages for the breach of a contract evidenced in part by the following letter:

‘New York, July 15, 1903.

‘Messrs. Rose & Putzel-Gentlemen: If you will procure a general release executed to me by Ferdinand H. Mela of any and every claim that he may allege that he has against me, I will agree to pay you for his account whatever sum I may realize on the sale of the Coronet, 58th Street and Sixth avenue, over and above six hundred and ninety thousand dollars, but only to the extent, however, of twenty-five thousand dollars, so that in no event shall he receive from me more than twenty-five thousand dollars. In speaking of six hundred and ninety thousand dollars, I include the present mortgages of all kinds affecting the property. This is intended to bind me and my executors.

‘Very truly yours,

W. H. Burgess.'

The Messrs. Rose & Putzel, to whom the foregoing letter was sent, were well-known lawyers in the city of New York, who then represented Burgess and Mela in some legal affairs. Mela promptly executed and delivered the release mentioned in the letter. That was in July, 1903. This action was not commenced until August, 1911, and at that time the apartment house known as the ‘Coronet’ still remained unsold. The plaintiff is the assignee of Mela, and the defendants are the executors of Burgess, who died July 11, 1909. The alleged unreasonable delay on the part of Burgess in selling the property is the breach of the contract assigned in the complaint.

[1][2] At the threshold of the discussion it is necessary to determine whether the judgment of the trial court was unanimously affirmed by the Appellate Division; for, if the affirmance was unanimous, we must assume that there was ample evidence to support the judgment. The original order of the Appellate Division attested the concurrence of all the justices, except Justice Carr, who dissented ‘only as to the allowance of interest.’ On motion the order was subsequently modified by adding at the end of the above-quoted sentence the words, ‘and otherwise concurs.’ The record discloses, therefore, that all the justices at the Appellate Division concurred in everything, except that Mr. Justice Carr dissented as to the allowance of interest to the plaintiff. Upon this record there can be no doubt, we think, that the respondent is entitled to invoke the unanimous affirmance rule. The amended order in the case at bar explicitly recites one thing that was lacking in the order in Taylor v. Higgs, 202 N. Y. 65, 71,95 N. E. 30, which contained the simple recitation that two of the justices dissented upon the authority of a specified decision of this court. As to the order in the case of Taylor, former Chief Judge Cullen observed:

‘It is urged that this dissent was on a question of law. Assuming that the dissent was on a question of law, that would not at all aid the plaintiffs in their contention. That a judge dissents on a question of law does not show that he affirms the disposition on the questions of fact.’

The order in the case at bar is not open to the same criticism, for it states expressly that Mr. Justice Carr concurred with his associates on all questions of fact. The question whether interest should be allowed was one of law. The dissent of Mr. Justice Carr on that single question, coupled with the statement that he concurred with his associates on all others, leaves no room for doubt that there was an unanimous affirmance on every question of fact in the case, and this is the assumption upon which we shall pursue our further discussion .

[3] While the contract, which is partially set forth in the letter written by Burgess, did not in terms impose upon him an absolute duty to sell at any particular time, there can be no doubt that Burgess intended thereby to lead Mela to believe that an honest effort would be made to procure a sale within a reasonable time. The trial court and the Appellate Division have, therefore, properly imported into the contract an implied duty on the part of Burgess to sell within a reasonable time if there were opportunity. Counsel for the defendants contends that the language of the agreement warranted no such implication . In this, we think, he is in error. Implied obligations should, of course, not be lightly imposed by virtue of written agreements which contain no language covering the particular contingency in controversy. Our courts have always been cautious in imputing such obligations, but it is none the less true, as stated by Judge Collin in a recent case, that ‘the doctrine of implied contract is firmly placed in our system of jurisprudence.’ In Genet v. D. & H. C. Co., 136 N. Y. 593, 609,32 N. E. 1078, 1081 (19 L. R. A. 127), Judge Finch states the rules governing this class of obligations with his characteristic felicity of expression, as follows:

‘They always exist where equity and justice require the party to do or to refrain from doing the thing in question; where the covenant on one side involves some corresponding obligation on the other; where by the relations of the parties and the subject-matter of the contract a duty is owing by one not expressly bound by the contract to the other party in reference to the subject of it. In this court we have thrown some safeguards about the doctrine to secure its prudent application, and have said that a promise can be implied only where we may rightfully assume that it would have been made if attention had been drawn to it (Dermott v. State, 99 N. Y. 101 ), and that it is to be raised only to enforce a manifest equity, or to reach a result which the unequivocal acts of the parties indicate that they intended to effect. (King v. Leighton, 100 N . Y. 386 ).’

The construction which counsel for the appellants asks us to place upon this agreement is that it obligated neither Burgess nor his executors to sell until they felt disposed to do so. We may admit that this would be the extent of the obligation imposed by the naked letter of the contract, but equity looks through the form to the substance and purpose of the agreement, and moulds its decree in accordance with what the parties may fairly be presumed to have intended. Every contract implies good faith and fair dealing between the parties to it. Industrial & General Trust, Limited, v. Tod, 180 N. Y. 215, 73 N . E. 7;Brassil v. Maryland Casualty Co., 210 N. Y. 235, 104 N. E. 622. When the contract between these parties is read in the light of this implication, it is obvious that the defendants assumed the obligation to sell within such reasonable time as the circumstances would permit. Any other construction of the contract would permit Burgess and his successors in interest to enjoy the fruits of Mela's release without making any effort to sell the property, and thus Mela would be left to live, perhaps to a ripe old age, without reaping the slightest advantage from his own prompt performance of the contract. The courts always avoid, if possible, any construction of a contract that is unreasonable or inequitable, and especially one that will place one of the parties at the mercy of the other. Schoellkopf v. Coatsworth, 166 N. Y. 77, 84,59 N. E. 710;Gillet v. Bank of America, 160 N. Y. 549, 557,55 N. E. 292;Russell v. Allerton, 108 N. Y. 288, 15 N. E. 391;Jugla v. Trouttet, 120 N. Y. 21, 28,23 N. E. 1066. It is to be observed, moreover, that the language of this written instrument was chosen by Burgess, and if it is to be regarded as ambiguous, or as failing to adequately express the agreement that was in the minds of the parties, Mela and his assignee are entitled to the most favorable construction thereof. Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215, 225,73 N. E. 7.

The appellants rely upon the case of Lorillard v. Silver, 36 N . Y. 578, more fully reported 3 Trans. App. 143. There the plaintiff agreed to transfer to the defendant a parcel of land. The defendant agreed to pay plaintiff the sum of $500, ‘in case I realize thirty-five hundred dollars for said land, or any other sum between three thousand and thirty-five hundred that I may sell the land for.’ In the action to enforce the agreement, which was made in March, 1856, it...