
    Edgar M. Miller et al., Respondents, v Edgar S. K. Merrell, 2d, Appellant.
    Argued March 23, 1981;
    decided May 7, 1981
    
      APPEARANCES OF COUNSEL
    
      John F. Lawton and Robert C. Zundel, Jr., for appellant.
    
      Leonard H. Amdursky for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of the Supreme Court should be reinstated.

The Appellate Division having reversed on the facts, our task is to determine which findings are supported by the weight of the credible evidence (Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 563; Cohen and Karger, Powers of the New York Court of Appeals, § 112; 4 NY Jur 2d, Appellate Review, p 462, § 361; cf. Matter of Mahoney v May, 40 NY2d 906), taking into account in a close case “the fact that the trial judge had the advantage of seeing the witnesses” (York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 134).

Whether, as the Appellate Division found, the parties agreed to purchase the Peakes’ 83-acre woodlot as an addition to the Crystal Lake property turns largely on whether defendant ever agreed to act for himself, his brother and his two cousins (the plaintiffs), whether he advised plaintiff John Miller that they all should buy the Peake property because of the Forestry Act, and whether John ever informed defendant that John and his brother wished to purchase the woodlot in their names alone. Defendant testified that he offered John and his brother the opportunity to join in the purchase but never agreed to make the purchase for all because he was incensed by John’s statement that he and his brother wished to purchase for themselves and by John’s interference with and jeopardizing of defendant’s relationship with the Peakes, who were his clients. He also testified that he told John Miller in answer to a question the price the Peakes wanted for the lot but never asked John for a check for one quarter of it, and that he never stated that the Forestry Act was a reason, for joint purchase. John Miller denied saying that he and his brother wished to purchase the property alone but conceded that he had said when first told about the property that he would like to buy the woodlot personally. He testified that he discussed with defendant and defendant’s father the purchase of the property and was told by defendant to send him a check for one quarter of the purchase price, and that defendant told him that the four of them should buy the lot because it would enhance the Crystal Lake property and give them more woodland under the Forestry Act. The situation is, thus, one in which credibility plays a major part and the Trial Judge’s advantage in seeing the witnesses should not be ignored.

A number of factors in addition to the deference due the Trial Judge’s finding put the weight of the evidence on defendant’s side. Though defendant’s brother testified that he told defendant the property could not be taken in defendant’s own name and that he and- his father were surprised by the defendant’s statement that he intended to do so, the Peakes testified that defendant’s father prepared and oversaw the execution of the deed from the Peakes to defendant, and defendant’s brother conceded that the acknowledgement of the deed was taken by his father. Since the Crystal Lake property was held at the time by plaintiffs and defendant’s father, it may be inferred from the father’s drawing of the deed that defendant’s father, who also acted as attorney for plaintiffs in some matters, did not believe defendant was violating any. duty to himself or to plaintiffs in taking title to the 83 acres in his own name. Moreover, plaintiffs made no showing that acquisition of the additional 83 acres made any legal difference under the Forestry Act. The fact that defendant offered plaintiffs the opportunity of joining in the purchase is inconsistent with an intent on defendant’s part to act improperly and does not, without more, spell out a joint purchase agreement. Since defendant never undertook to purchase for plaintiffs and his brother and himself, the agency rule stated in the Restatement of Restitution (§ 194, subd [2]), is inapplicable (see § 194, Comment f, at p 799: cf. Restatement, Agency 2d, § 393).

Absent the “apparent and implied agreement” upon which the Appellate Division relied, defendant can be held a constructive trustee only if the law imposed upon him the obligation, regardless of intent, of acting in relation to the Peake property for plaintiffs as well as himself, or in preference to himself. The possible bases for imposing such a duty are the relationship of the Peake property to the Crystal Lake property, the interests of the parties in the Crystal Lake property, the familial relationship and the professional relationship between defendant and plaintiffs. The first imposes no such obligation, however, for, as already noted, plaintiffs have not established any advantage under the Forestry Act in the acquisition of the Peake lot by the owners of the Crystal Lake property, and the contiguity of the parcels alone creates no duty. Nor on the facts of this case does the second, for when defendant bought the Peake lot in 1972 neither he nor his brother had any interest in the Crystal Lake property. That either or both might eventually inherit or be given their father’s half interest in it did not require that they act before such gift or inheritance as if they owned that interest.

Such familial or professional obligation as defendant had was satisfied by his bringing to plaintiffs’ attention the availability of the property for purchase. The facts that in 1965 defendant had prepared the Forestry Act application for the Crystal Lake property and that he worked out and gave to his father apportionments between plaintiffs and his father of the taxes on the property for some years did not make defendant the attorney for plaintiffs in relation to that property, and such other legal matters as the firm handled for plaintiffs gave rise to no duty on the part of a member of the law firm not to purchase land contiguous to plaintiffs. The opportunity to purchase came to defendant because of his representation of the Peakes, who testified that they offered it to defendant rather than for sale generally and that they thought it strange that John Miller, who asked Mrs. Peake for the key to a cabin on the property, “was butting in on us.”

Acquisition of the Peake lot by the owners of the Crystal Lake property, though it would have increased the acreage they held, was in no way necessary to their continued holding or use of their own property. Though we do not disagree with the law upon which the Appellate Division relied, we find no basis on the facts of this case in the law of contracts, agency, trusts or restitution for holding defendant to be a constructive trustee of the 83 acres acquired by him from the Peakes.

Gabrielli, J.

(dissenting). A constructive trust may be imposed “[w]hen property has been acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest” (Beatty v Guggenheim Exploration Co., 225 NY 380, 386; see 1 Scott, Trusts [3d ed], § 44.2, p 337; 4 Pomeroy’s Equity Jurisprudence [5th ed], § 1053, p 119). The equitable doctrine is invoked in most cases to remedy the breach of a duty arising from a confidential or fiduciary relationship (see Bogert, Trusts & Trustees [2d ed], § 482, p 280). In some instances, the breach may consist of the failure of one in whom trust has been reposed to honor the terms of an express or implied promise to act in another’s interest (see, e.g., Sharp v Kosmalski, 40 NY2d 119, 121; Sinclair v Purdy, 235 NY 245). In other cases, a constructive trust has been imposed to prevent a coventurer from enjoying the benefits of a joint opportunity which he has. wrongfully appropriated to himself in derogation of the rightful expectations of the other coventurers (see, e.g., Meinhard v Salmon, 249 NY 458). Since, in my view, both of these conditions were present in the instant situation, I would uphold the imposition of a constructive trust upon the property which defendant Edgar S. K. Merrell, II, improperly acquired for himself.

There can be no serious dispute concerning the existence of a confidential relationship among the various parties. Defendant Edgar S. K. Merrell, II, who is an attorney, had handled several legal transactions for his cousins, Edgar M. and John Miller, including the administration of the estate of which the property known as Crystal Lake was a part. He had also managed the payment of the annual property taxes.on Crystal Lake and had negotiated favorable tax treatment for the parcel with the Department of Environmental Control. Such past dealings in relation to the Crystal Lake property, coupled with the close familial ties that existed between defendant Edgar S. K. Merrell, II, and his cousins, certainly were sufficient to give rise to a relationship of trust among the parties, notwithstanding that defendant had not been formally retained by plaintiffs to represent them in the purchase of the Peake parcel, which adjoined Crystal Lake.

Although they do not dispute that a confidential relationship existed, a majority of the members of this court find no basis for the imposition of a constructive trust in this case. Relying primarily upon the factual findings of the trial court, the majority has concluded that defendant Edgar S. K. Merrell, II, did not, either expressly or impliedly, promise to purchase the Peake property on behalf of the four individuals who had a beneficial interest in the adjacent Crystal Lake parcel and that, consequently, the constructive trust remedy is not warranted. It is on this point that I find I must part company with my colleagues, since, in my view, the weight of the evidence clearly supports the factual conclusion of the Appellate Division that defendant’s conduct constituted an implied promise to act in plaintiffs’ behalf.

The Crystal Lake property was owned by plaintiffs Edgar M. and John Miller and by defendant’s father, Nathaniel E. Merrell. Defendant and his brother, Nathaniel B. Merrell, however, had built “camps” on the property and regularly used it for recreational purposes. Plaintiff John Miller testified at trial that some time during the month of June, 1972, defendant Edgar S. K. Merrell approached him to advise him that the 83-acre woodlot adjoining the Crystal Lake parcel was for sale and to inquire whether Miller was interested. According to Miller, he at first expressed an interest in purchasing the property for himself, but later changed his mind and agreed with defendant when defendant stated the property should be purchased by the four cousins who used Crystal Lake in order to protect their right to favorable tax treatment. As a result of this conversation, according to Miller, he was left with the impression that defendant would negotiate a purchase of the woodlot from the Peakes, who were defendant’s clients, and would arrange for title to be placed jointly in the names of the four cousins.

Miller further testified that some time during July, he visited defendant’s law office to discuss the purchase of the Peake woodlot. During this meeting, according to Miller, defendant’s father, who practiced law in the same building, took out an atlas, in defendant’s presence and showed Miller the precise boundaries of the Peake parcel. Finally Miller stated that he, defendant and defendant’s father had a “general conversation” about the anticipated joint purchase.

The next conversation plaintiff John Miller had with defendant Edgar S. K. Merrell concerning the Peake property occurred in early August of 1972. According to plaintiff, Merrell informed him that the Peakes wanted only $650 for the property and that he (Merrell) would “take care of it” if Miller sent him a check for one quarter of the purchase price. Apart from a brief conversation concerning whether the property should be purchased in the names of the four cousins individually or in the name of the estate of which Crystal Lake was originally a part, plaintiff Miller heard nothing further from his cousin until early September, when he was called to defendant Merrell’s office and informed that Merrell had purchased the property for himself.

Interestingly, although defendant Merrell’s version of the events leading to his individual purchase of the Peake property differed somewhat from the version recounted by plaintiff John Miller, Merrell’s testimony is not inconsistent at all with the notion that Merrell had impliedly promised to act on plaintiffs’ behalf. Merrell acknowledged that he had called on Miller to ask him whether he was interested in the Peake property and that Miller had responded affirmatively. Significantly, Merrell stated that he offered the property to his cousin, John Miller, because he “felt the decent thing to do would be to * * * include him”. Defendant Merrell also acknowledged that he was aware that Miller had been shown the boundaries of the Peake property while he was in defendant’s law office, although he denied having participated in any “general conversation” concerning the planned purchase of the woodlot. Finally, Merrell admitted that he had told his cousin of the asking price for the Peake property in August of 1972, but stated that he had no recollection of having asked Miller to send him a check for his share of the price.

Defendant’s testimony on the question whether joint ownership of the property was ever explicitly discussed was somewhat equivocal, since he was unable to recall the specifics of many of the critical exchanges which took place between himself and his cousin. Merrell was able to state with certainty that he never suggested that the property be purchased in the name of the estate associated with Crystal Lake, but he noted that his certainty arose only from the fact that, as an attorney, he knew that the estate had no legal capacity to acquire title. Merrell was not able to state unequivocally that ownership of the property by the four cousins who used Crystal Lake was never discussed; instead, he merely testified that he had no recollection of such discussion.

Even if defendant’s somewhat ambiguous testimony is credited, there is ample basis for concluding, as the Appellate Division did, that an implied promise had been made. Plaintiff John Miller had grown accustomed to relying upon his cousin, Edgar S. K. Merrell, II, to handle the legal details associated with the Crystal Lake property. When Merrell approached Miller and asked him if he were interested in acquiring the adjacent Peake woodlot, it was only natural for Miller to assume that his cousin would continue to represent his interests if he responded affirmatively. And, this assumption would seem to have been wholly warranted in light of defendant Merrell’s admission at trial that he only decided to ignore his cousin’s interests and purchase the Peake parcel for himself in August of 1972, when he became angered at his cousin’s behavior. Indeed, the only reasonable inference that could be drawn from defendant Merrell’s conduct in keeping plaintiff informed of the status of the Peake property was that he intended to negotiate the purchase of the property on behalf of plaintiff and the other parties who shared an interest in Crystal Lake.

As a result of his professional and familial ties to the Miller brothers, defendant Merrell had an affirmative obligation not to mislead them concerning his intentions to represent their interests in connection with the purchase of the Peake parcel. At the very least, he had a duty to inform plaintiff John Miller when he decided to purchase the property for himself. His failure to do so in the face of his certain knowledge that Miller wanted the property and assumed that defendant would make the necessary arrangements is a circumstance from which we may infer the existence of an implied promise (see Sharp v Kosmalski, 40 NY2d 119, supra) “Though a promise in words was lacking, the whole transaction * * * was ‘instinct with an obligation’ imperfectly expressed” (Sinclair v Purdy, 235 NY 245, 254, supra, quoting Wood v Duff-Gordon, 222 NY 88, 91).

Moreover, the parties’ joint interest in the Crystal Lake property may be regarded as an alternative basis for imposing a constructive trust in this case. There can be little doubt that the availability of the Peake property constituted an appealing “opportunity” to the individuals who possessed an interest in the adjacent Crystal Lake parcel. Under settled principles of equity jurisprudence, such an opportunity could not be appropriated by one of the “co-venturers” in Crystal Lake unless he first offered the other interested parties a chance to participate (Meinhard v Salmon, 249 NY 458, supra).

The majority apparently recognizes the applicability of these equitable principles to the facts in this case, but nonetheless declines to invoke them as a basis for imposing a constructive trust because defendant Merrell possessed no actual legal interest in the Crystal Lake property at the time he purchased the Peake parcel. The majority’s reliance on the technicalities of title, however, is misplaced in this context, for the absence of record ownership in defendant cannot negate the fact that, in reality, he was a “co-venturer” in the beneficial use of Crystal Lake.

It is undisputed that defendant and his brother Nathaniel had set up “camps” on the Crystal Lake parcel for their own personal use. Similar use of the property was made by plaintiffs John and Edgar M. Miller. Moreover, although legal title to the Merrells’ share of the property remained in defendant’s father, defendant acknowledged that he fully expected to inherit it upon his father’s death. Finally, defendant Merrell’s continuous use and management of the property stand as clear indications of his proprietary interest in the parcel.

Equity demands that we “look through mere form to the substance of things” (Zeiser v Cohn, 207 NY 407, 419). Here, although formal title resided elsewhere, there can be no doubt that the four cousins, the Merrell brothers and the Miller brothers, were, in the substance, coventurers with respect to Crystal Lake. Their shared interest in the property, in turn, gave rise to an obligation in each to refrain from acting in secret and appropriating an opportunity which properly belonged to all four. Since defendant Merrell cynically breached this obligation by acquiring the Péake parcel for himself, equity requires no less than that a constructive trust be imposed upon his acquisition for the benefit of those whose rights were disregarded.

For all of these reasons, I most respectfully dissent and cast my vote to affirm the order of the Appellate Division.

Judges Jasen, Wachtler, Fuchsberg and Meyer concur in memorandum; Judge Gabrielli dissents and votes to affirm in an opinion in which Chief Judge Cooke concurs; Judge Jones taking no part.

Order reversed, etc.  