
    John Francis Maher et al., Plaintiffs, v. Della Garry et al., as Executors of Thomas Garry, Deceased, Defendants.
    (Supreme Court—New York Special Term,
    December, 1895.)
    Pabtnebship—Agbeement—Cancellation.
    Defendants’ testator, being desirous of retiring from active business, associated with himself in the continuance of his business the .plaintiffs, who were former employees, entering into a written contract with them whereby he was to leave his capital in the business subject to his right to withdraw it at any time, and upon such withdrawal to assign a one-fifth interest in the business to each of the plaintiffs. It also provided that testator,-or his executors, might at any time terminate, rescind and. annul the agreement upon paying to plaintiffs the amount of capital which they had put in, with interest. At the time of signing the contract the plaintiffs objected to the provision giving the executors power to cancel, and testator agreed to add a codicil to his will, directing bis executors to allow the continuance of the business if plaintiffs complied with the contract. Such codicil was made, but afterwards revoked. After a large part of testator’s capital had been withdrawn he died, and his executors exercised the option to terminate, the agreement. In an action to restraip such action by them, held, that the written contract embodied the entire agreement between the parties, which could not be affected by the parol agreement; that'fraud could hot be predicated of the act of the executors, and that the action could not be maintained.
    Action to restrain the defendants from canceling a written* contract of partnership or joint enterprise.
    
      Dill, Seymour & Kellogg, for plaintiffs.
    
      Guggenheimer, Untermyer & Marsall, for defendants.
   Russell, J.

This action is brought, not to reform a written contract of partnership or joint enterprise, but for injunctive relief against the. executors of* the deceased associate, based upon a claim of a right to continue the joint business, derived from an - oral agreement collateral to and contemporaneous with a written ágreemént of-partnership or joint enterprise.

The deceased, Thomas Harry, was-thé owner of a store bush ness in Hr and street,. Hew York city, and desired to retire from active participation in it. He associates with him in the continuance of the business two of his. former employees, by agreement made May 14, 1892. By the agreement he leaves in his capital, .$151,327.45, which he has the right-to withdraw, with interest thereon at six per cent per annum, at any time he' saw fit. The plaintiffs contributed $8,000 tb the capital, - and Maher had the right to withdraw thirty-fhree dollars per week and. Mo'lohan. eighteen dollars per wéek, and had no farther interest in the business or profits lintil the capital- of Harry was withdrawn. . .

By the eleventh section of the agreement Harry, or, his executors, administrators, - successors or assigns, had .at any time'the power to terminate, rescind and annul the " agreement, free from all claims for damages, on paying tb the parties, of the second part the $8,000 and interest. Harry," until his .capital was repaid, was the sole owner of the business and the assets, and might at ■will alter any previous part of the agreement, but upon the withdrawal of the full amount of his capital the agreement should be binding on-him.

. Upon-the withdrawal, of such capital- Harry was to 'assign one-fifth of the business and assets to each of. the .plaintiffs, but might by his election continue the business for five-years, ■with an option of another term of 'five years, either by general or special partnership.

The evidence in .the. case .as- to the collateral- 'agreenient shows that, at the- time the agreement was read to the plaintiffs,, and before*signing, they objected to the eleventh section, conferring the power-to cancel, .saying to Harry that they were willing-to trust him and sign it, but as he was'liable to die, they did,not know what his. executors. would do,, and what position'they would be. then placed in, but they withdrew the objection upon Harry’s-stating that-he would add a codicil to his will directing his executors- to conform" tb the "agreement and have the business continued, provided the plaintiffs complied with the contract..

Garry died in May, 1894, having withdrawn of his capital the sum of about $78,000, and hi's executors had withdrawn at the time of the trial enough more to leave only about $60,000 of Garry’s capital in the business. In April, 1895'^ the executors served upon the plaintiffs notice that they elected to cancel and withdraw the remaining capital, and offered to pay the plain tiffs, the amount of • their contribution of $8,000 and interest. The plaintiffs rejected the offer, and brought this injunctive suit, claiming tliat during the. three years of their 'management of the business it has been a profitable one, and that, ■ through .the force of the written agreement and the oral collateral promise, they have acquired the right to continue it so that the business may pay the remaining Garry capital with interest, and that' thus they may acquire a two-fifths interest in the property, with the com tingent partnership privileges set forth in detail in the written agreement.

If • the agreement is now rescinded the plaintiffs will only receive the- capital they put in, with interest, and retain' the sums concurrently paid or allowed to them for services out of the business. In that event their loss would be the amount of profit earned by their management of their business, they being indemnified for the capital which they put in and, to a certain amount, -for their labor in the Continuance of the business. „

It is very apparent, both from the terms of the agreement itself - and' from the conversation- between the parties at the time of the execution of that agreement, that the testator intended to own and control thé property and business absolutely until his capital was withdrawn, and to have the power to withdraw from" the arrangement and to resume possession at any time that he saw fit, without being obliged to give, a legal excuse therefor, as he was trying, an experiment in placing these two young .men in the control of his business, an experiment from which he. might wish, to retire, in case of unskillful management or subli a change in the business, affairs at that location'as might render a cóntinuancé unprofitable or hazardous.

. It is also apparent from the agreement and the conversation • that the. plaintiffs saw that they had 'nothing to lose and were very willing to trust to the judgment, discretion and good) will of the testator ip offering them the management of the busi-' ness, by which they might within a few years acquire a very valuable interest in it. ;

Upon this footing and understanding the parties make their written contract. In no event were the plaintiffs to have: any interest in the property until, by the continuance of the busi-., ness in the. uncertain future, that business had freed itself from the burden- of the capital which started it, by the accumulated profits, and until that time should come the testator ' might terminate the arrangement, indemnifying the plaintiffs in sums fixed for their capital advanced! and services performed.

This' was not only "the scheme of. the contract, but it'was plainly and understanding^ expressed in the instrument itself so that the plaintiffs fully understood its scope and effect. To now interpose an Oral agreement made cotemporanously with the signing which would render" the testator’s rights, which were expressly provided should be. carried over to his executors, ineffective, and te destroy that power of cancellation which was definitely provided for, would have the effect of nullifying "the written- agreement and impairing the purpose and power which that agreement expressly stated and" conveyed.

This case, therefore, does not present the situation of a • general oral agreement a part of which is by its terms committed to writing and signed, and the other, part left, unexecuted by any written document, but rather that of an agreement full and complete in all its parts and signed by! the : parties as containing the agreement.

Nor can fraud be predicated of the'action of the testator or his executors by their insistence upon the legal rights fixed by that agreement. It may have surprised the plaintiffs that the testator and the" executors should act as- they did and by the action of the testator in making a codicil to his will of the character he did,- and then revoking it, that the executors should terminate a business alleged to be profitable. Their surprise and disappointment' does not impose upon the other parties the charge of fraud, for the contingency was one which they knew might occur when they executed the agreement under the circumstances they did.

There is another view of this case which may be taken without treating the alleged agreement as an attempt to modify the legal effect of the written agreement, and which is satisfactory as reconciling the conversation with the agreement itself. The plaintiffs concededly gave to the testator the absolute power to cancel during his lifetime. The trust which they reposed in his. willingness- to deal justly with them was fully as great as that which they would be. expected to place in him if they placed a moral reliance" upon his executing á favorable provision in his will. They were willing to trust him at the same time not to exercise unjustly the power to cancel, and also to incorporate" a provision in his will continm ing the business. Both acts had to be performed in his lifetime both acts"were left, not only to his sense of justice,- but to his possible perception of the" danger of continuing' -a business decreasing in value or increasing in risk in times of financial distress, so that he might provide for himself, or for his ■ estate, when he could no longer supervise it, against the perils of the future.

So considered, the whole transaction at the time of the signing of the instrument was consistent with the purposes and intentions of the parties, and it is the most reasonable supposition that the plaintiffs relied upon his willingness to allow the business to continue after, death, if, -in his judgment, it should likely be safe to do so, rather than upon a legal obligation to-prevent after his death the doing of a thing which he might do in life, and which -legal obligation was nowhere incorporated into the lengthy and expressive instrument which contained the agreement of the parties.

Prom these' views it follows that' judgment must he rendered -in favor of the defendants dismissing the complaint, . with costs.

Complaint dismissed, with costs.  