Stannard v. Hubbell

• Decision Date: 02 December 1890
• Citation: 123 N.Y. 520,25 N.E. 1084
• Parties: STANNARD et al. v. HUBBELL et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 520

25 N.E. 1084

STANNARD et al.

v.HUBBELL et al.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, second department.

Action by Daniel Buhler and Elbert Stannard against Charles E. Hubbell, George A. Porter, Daniel W. Richards, and Morton B. Smith to enforce an agreement between all the parties to the action for the disposition and sale of certain vessels owned by the parties as tenants in common. There was judgment for plaintiffs, and the vessels were ordered sold. Subsequent to the entry thereof, an order was entered to the effect that the judgment was not to be deemed to determine whether a clause requiring defendants Hubbell and Porter to pay plaintiff Stannard $1,500 for taking charge of the breaking up of the ships had been abrogated. The parties agreed to a reference to determine that question. The referee reported that the clause had been abrogated, and an order was entered overruling the exceptions to the report filed by plaintiff Stannard. Such order was affirmed by the general term, (10 N. Y. Supp. 254,) and plaintiff Stannard again appeals. The general facts connected with the litigation are as follows:

‘In September, 1883, the parties to this action, with two other persons, (whose interests were subsequently acquired by the plaintiff Stannard,) bought several old ships of the government of the United States, with a view of stripping them, and selling the hulls. On the 13th of October, 1883, the parties entered into a written contract for the purpose, as recited, ‘of breaking up and selling the materials from the ships bought from the government.’ The contract consisted of nine clauses, and, among other things, it defined the interest of the respective parties in the adventure. Only two of the paragraphs are now material, viz.: ‘(1) The ships are to be stripped of all the materials, so far as practicable, in and upon them, so that nothing but the bare hulls remain, the same to be sold for cash, at the best market prices, when ready for delivery.’‘(3) Messrs. Hubbell and Porter are to pay fifteen hundred dollars as a bonus to Captain Stannard for taking charge of the breaking up of the ships.’ The substantial controversy on this appeal relates to the question whether the fact in issue on the reference in this action, viz., as to the abrogation of the compensation clause in the contract of October 13, 1883, had been adjudicated adversely to Hubbell and Porter by a judgment rendered in September, 1885, prior to the commencement of this action in a suit brought by Hubbell and Porter, the present defendants, against Stannard and others, the present plaintiffs. It appears from the pleadings and record in that action that it was brought in March, 1885, to restrain the defendants, Stannard and others, from proceeding, as they threatened to do, to sell the hulls of the ships, under and pursuant to the contract of October 13, 1883, on the ground that that contract had been abrogated, and a new verbal agreement made between the parties, the terms of which are stated, providing, among other things, for a different mode of disposing of the ships than was provided for in the original contract; that is to say, that, instead of being sold as bare hulls after being stripped, as provided by the first contract, they should be broken up, and the material sold for the benefit of the parties interested.

The complaint sets out in haec verba the contract of October 13, 1883, and alleges that it was understood and agreed between the parties that that contract ‘should be and was canceled,’ and a new contract substituted therefor. The new verbal contract set forth covers many of the particulars embraced in the original contract, but contains no compensation clause, as did the original contract, nor any equivalent clause, making no reference whatever thereto, except what may be implied from the making of a new contract in substitution for the original one, which omits any provision on the subject. The defendants, in their answer in the Hubbell and Porter suit, put in issue the allegations of the complaint in respect to the new and substituted contract; deny that any new verbal agreement was ever made; and allege that the contract of October 13, 1883, ‘still remains in full force and effect, and has never been canceled or modified in any respect;’ and they aver, in substance, that the mode in which the ships are to be disposed of is governed by the provision in that contract. The trial judge, after hearing the evidence, dismissed the complaint, on the merits, with costs to the defendants, and vacated the receivership procured on the application of the plaintiffs; and judgment in conformity with his decision, adjudging ‘that the plaintiffs were not entitled to any relief in the action,’ was entered in September, 1885. The trial judge made findings of fact and law. The first, second, and third findings of fact are as follows: ‘ First, that on the 20th, 22d, and 23d of October, 1883, there were negotiations between the parties to this action as to canceling the agreement of October 13, 1883, set forth in the complaint, and as to making some new arrangement between them in reference to the future sale or other disposition of the vessels referred to in that agreement; second, that there was never any definite agreement on the subject of the new agreement referred to in the last finding of fact, and the minds of the parties never met on the terms of such proposed new agreement; third, that the plaintiffs and the defendants never did make the verbal agreement alleged in the complaint to have been made on or about October 13, 1883.’ There was no express finding as to the compensation clause in that contract, or whether it had or had not been abrogated. The evidence on which the judgment proceeded, with certain fragmentary exceptions, does not appear. Hubbell and Porter appealed from the judgment to the general term, where it was affirmed January 27, 1887. Subsequently, in June, 1887, a motion was made upon affidavits by the plaintiffs, upon notice to the defendants, at special term, before the judge who tried the cause, to amend the original judgment, whereupon the following order was made: ‘It is ordered that the judgment and findings in this action be, and the same are hereby, amended by adding thereto the following clause: ‘It is further ordered and adjudged that the complaint herein be dismissed without determining the question whether or not the clause of the contract of October 13, 1883, requiring the payment of $1,500 by the plaintiff herein to the defendant Stannard, was or was not abrogated, and without prejudice to either party asserting or denying such abrogation in any other action.’' The papers on which this order was granted are not contained in the record. There has been no appeal taken from the order. The points taken by the appellant are: First, that the judgment in the action brought by Hubbell and Porter conclusively adjudicated against them the fact litigated before the referee in this action, and determined that the compensation clause in the contract of October 13, 1883, had not been abrogated; second, that the order of June, 1887, amending the judgment, by which it sought to deprive the plaintiffs here of the benefit of the estoppel of the judgment on this point, was unauthorized and void.

A. R. Dyett, for appellant.

Wm. G. Tracy, for respondents.

ANDREWS, J., ( after stating the facts.)

If the amendment of the judgment in the former action changed the legal effect of the judgment as an estoppel upon the point involved in the present controversy, and it was necessary now to determine the question of the power of the court at special term to make the order of June 25, 1887, the question would perhaps be found to turn upon the point whether the amendment was in the nature of a correction of an error on a reconsideration in the nature of a review of the decision rendered, or was made simply to conform the judgment to the decision actually rendered, but which, when formulated, failed, through mistake or inadvertence, to express the intention of the court. The power of a court of original jurisdiction to set aside and vacate its judgments, in particular cases, is a part of its inherent and recognized jurisdiction, and in many cases is regulated by statute. When exercised, the parties are remitted to the position they occupied before the judgment was rendered, and the case stands again for trial, or for such other disposition as may be appropriate to the situation. But judicial errors committed by a judge on the trial or decision of a cause...