
    Garrett Reilly, Appellant and Respondent, v. Charles Q. Freeman and Edith M. Varker, as Executrix, etc., of William R. Varker, Deceased, Respondents and Appellants.
    
      Partnership accounting — apa/t'tner may follow his interest into stock of a corporation— that a remedy exists at law must be pleaded—Statute of Limitations — a several obligation is improperly decreed where there is joint liability — an alternative judgment for money in the absence of proof of the value of the stock is improper.
    
    In an action in the nature of a partnership accounting it appeared that the plaintiff and one Freeman and a person named Yarker entered i to a joint adventure relating to supposed salt deposits; the plaintiff advanced a considerable amount of money, and a corporation was created called the New York Rock Salt Company, and 2,500 shares of its stock were issued in one certificate to Freeman and Yarker, in which shares were included the plaintiff’s one-third. This corporation did no business. Freeman and Yarker, however, secured valuable options on certain lands, in which options the plaintiff had an interest, and subsequently Freeman induced a person named Foster to come into the enterprise, and a corporation called the Empire Salt Company was formed, to which Freeman and Yarker conveyed all the options, the interest of the plaintiff being recognized and provided for, and shares in the Empire Salt Company were allotted to Freeman and Yarker, in which the plaintiff had a one-third interest. The Empire Salt Company was not satisfactory to Foster, and a company was formed known as the Retsoff Company, in which Freeman and Yarker were allowed, in 1895, 6,000 shares, in which amount the plaintiff still had ar> interest of one-third.
    
      Held, that the plaintiff was entitled to recover;
    That there was one continuous series of transactions, and that the plaintiff was entitled to receive in specie the shares of the stock of the Retsoff Company, which now represented his interest in the adventure;
    That the court would not consider the question whether the plaintiff had an adequate remedy at law for the reason that no defense of that character had been pleaded;
    That the Statute of Limitations would not begin to run until the shares of the Retsoff Company came into the hands of the defendants, and that in an action between partners the ten-year clause only would apply;
    That it was erroneous in the court below to separate the accountability of the defendants Freeman and Yarker and to make a specific award of one-half of the shares of the Retsoff Company against each;
    That the liability of Freeman and Yarker to account was joint in its nature, and that the plaintiff should be allowed to pursue his remedy against both and to get the shares due him from whichever of the defendants could comply with the decree;
    
      That as there was no evidence of the value of the stock of the Retsoff 'Company, it was erroneous in the court to grant the plaintiff a judgment for distinct sums of money in the event that the defendants did not comply with the terms of the decree requiring the delivery specifically of the shares of the Retsoff Company.
    Cboss-appeals by the plaintiff and defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of March, 1895, upon the decision of the court rendered after atrial at the New York Special Term.
    
      Treadwell Cleveland and Henry W. Hardon, for the plaintiff.
    
      L. Laflin Kellogg, for the defendants.
   Patterson, J.:

The plaintiff and defendants have appealed from the judgment herein. The plaintiff really seeks a modification of it while the defendants ask for an absolute reversal. We will first consider the defendants’ appeal. The pleadings present very simple issues of fact. The plaintiff claims to be entitled to receive from the defendants some 1,500 shares of the common stock of the Retsoff Mining Company or alternatively the value of such shares. The action is in form for an accounting of the results of a joint enterprise, in which it is alleged they engaged upon an agreement to share equally in whatever might be realized as the outcome of the venture. The first issue raised relates to the existence of an agreement of the character claimed by the plaintiff, upon which the court below found on sufficient evidence in favor of the plaintiff. The testimony establishes that the defendant Freeman in the year 1883 called the attention of the plaintiff to the then supposed existence of salt deposits in Livingston county, in. the State of New York. It is conceded that some arrangement was then made by and between the plaintiff and the defendant Freeman and one Varker (an original defendant, who has died since the judgment was entered herein and whose executrix has been substituted as defendant in his place), by which the plaintiff was to advance money for prospecting and exploration, and Freeman and Varker were to superintend such experimental work and to procure options for the purchase of lands on or under which the salt deposits might fe found. Thus far, there seems to be no serious contradiction in 'She testimony. That there was a joint venture, whether it be sailed a partnership, quoad the particular subject of it or not, is fairly established. The plaintiff did advance moneys and all that were advanced by any one up to a certain period, and when called upon to contribute more, and being unable to do so, authorized his associates to raise money by disposal of securities in their hands belonging to him. The first stage of an attempt to put in some tangible form the subject of the enterprise they had undertaken was the creation of a corporation called the New York Rock Salt Company. Shares of stock of that company were issued, one share to the plaintiff, one to each of the other associates. Other shares were reserved for a working capital, and 2,500 shares were issued in a certificate to Freeman and Yarker. In these last-mentioned shares was included the plaintiff’s one-third. No distribution of the 2,500 shares was ever made. The amount of the joint interest of the three was subsequently fixed at 1,500 shares. They were held by the defendants Freeman and Yarker. At this point it is claimed by the defendants that on the organization -of the Rock Salt Company and the issuance of shares by it, the plaintiff’s rights became fixed and determined, and consist now only of a valueless claim to his proportion of 2,500 shares of capital stock of that company. It does appear in evidence that the parties contracted for the formation of a corporation, but that first corporation never did business, the plaintiff never received his proportion of stock, and when new arrangements were made, as hereafter stated, he relinquished active participation in the affairs of the venture. But he did not abandon his interest in the project. Freeman and Yarker had gone on and taken options, in which options the plaintiff was still interested. They had been secured by the money advanced by him, and although not all actually so secured within the time originally contracted for with the owners of the land, yet notice of acceptance seems to have been given before the options expired. The ®nly real asset of this joint venture between the parties to it were these options, which turned out afterwards to he of very valuable salt lands. It being found impossible to carry out the purpose of the venture through the Rock Salt Company, Freeman appears to have made efforts to induce a gentleman named Foster to come into the enterprise. Mr. Foster consented. A new corporation was created called the Empire Salt Company, to which Freeman and Marker conveyed all the options or lands embraced in the options, thus leaving the Rock Salt Company without any valuable asset. Mr. Foster seems to have had the dictation of the terms on which he would enter into the adventure, and, as matter of fact, the interest of Reilly and his associates was recognized and provided for. That Reilly was included is distinctly shown by Freeman’s own letter to him of February 28, 1884, in which he states “the whole responsibility of the purchase of the land Mr, Foster assumes personally and he also agrees to allow our interest to amount to one-quarter of the whole.” Here is a direct acknowledgment from Freeman: and Marker knew, as his letter of January 4, 1884, shows, that Reilly’s interest, or some of it, still remained in him. In this organization of the Empire Company shares were allotted to Freeman and Marker, and Reilly was entitled to one-third of them. But the Empire corporation Avas not satisfactory to Mr. Foster, and he caused still another one to be formed called the Retsoff Company, which issued shares, of which 6,000 were given to Freeman and Marker, being in the proportion of five in the last to one in its predecessor corporation. That Reilly’s third interest is traced into these shares was found by the judge below on evidence satisfactory to him and to us. Freeman and Marker recognized the plaintiff’s right to participate in the shares allotted to them. They sent him a certificate for 500 shares, Freeman saying, “ because it Avas right,” but they suppressed the fact that they had received 6,000 shares, which fact Avas not discovered by Reilly until late in the year 1888. There was quite enough evidence to justify the conclusion of the court below that there A^as one continuous series of transactions from the initial agreement between the plaintiff and Freeman and Marker down to the receipt by the latter of the 6,000 shares in the Retsoff Company, in Avhich the three parties named were jointly interested, and that out of the 6,000 shares, Avhich were the ultimate proceeds of those transactions, the plaintiff was entitled to his one-third. He is entitled to the stock specifically, not upon the theory of specific performance of an executory contract, as the defendants’ counsel intimates is the ground upon which the Special Term gave the particular relief, but because, upon the proofs, it appears that, in an action for an accounting, it is found that the plaintiff’s interest exists in the form of shares of stock in a corporation, which shares he elects to take in specie if they can be reached and in accordance with the original agreement that a corporation should be formed and the plaintiff’s interest consequently be held or represented in the form of shares.

It is urged by the defendants that the plaintiff has an adequate remedy at law, by action for damages or for conversion, but no defense of that character is set up (Lough v. Outerbridge, 143 N. Y. 271), and for that reason it makes no difference whether or not the claim is well founded. The Statute of Limitations is also relied on by the defendants, but the statute would not begin to run until the shares of the Retsoff Company came into the hands of the defendants, which we understand to have been in December, 1885, and this we conceive to be really a suit between partners, to which the ten years’ limitation applies. (Still v. Holbrook, 23 Hun, 517.)

Five hundred shares of stock in the Retsoff Company having been delivered by the defendants to the plaintiff, there apparently remained 1,500 shares to which he was entitled, from which the trial judge deducted 200, awarding the plaintiff 1,300 shares of the stock. Just at this point the appeals of both the pdaintiff and the-defendants come together. The plaintiff insists that the learned judge was in error in allowing any deduction, while the defendants claim that there is a palpable error in making the allowance of only 200 shares, because there should be a much larger deduction in consideration of the fact that the 200 shares referred to were shares of the Rock Salt Company, and that if those shares are to be taken into consideration, it must be in connection with the increased amount into which they were finally transmuted of shares in the Retsoff Company. We think the fact is established that by the original agreement at the initiation of the enterprise, Reilly contracted to furnish all the moneys that were necessary to develop the land and to launch the enterprise. He admits that he was unable to furnish those moneys in full, and particularly an amount that was required to pay one Perry for sinking a well. Correspondence between Reilly and his associates, concerning his inability to advance further, is contained in the record, and it is also shown that Reilly authorized the defendants to dispose of a part of his original interest in order that money might be raised for the purpose just mentioned. It is said by the plaintiff that he merely authorized a sale. It is true that Freeman and Varker did not make a direct and absolute sale of the shares at the time the authority was given. They pledged them, and they raised the money to pay Perry. Certainly the plaintiff did not advance that money, and certainly he should not be permitted to retain his original interest in defiance of the fact that he failed to perform his contract in full. These 200 shares were pledged, as has been stated, and it would appear to be entirely immaterial to the plaintiff in what way they were disposed of so long as he consented to an absolute relinquishment of them in order that he might carry out the contract which lie made with his associates. He does not appear ever to have protested against the course that ivas pursued, or to have demanded any account, but to have acquiesced in what was done, and he does not show that he was ignorant of it or that he desired an opportunity to redeem the shares. It would be inequitable now to allow his claim, that having broken in part his own agreement he shall stand in the transaction after years of acquiescence as if he had performed it literally or in strict accordance Avith the obligation he originally assumed. The learned judge Avas, therefore, right in his ruling in reducing the number of shares aAvarded from 1,500, but he lost sight of the fact that the deduction should have been made by the proportionate amount which the increased allotment of Retsoff shares bore to the Rock Salt Company shares, and, therefore, the account as to the Retsoff shares should be restated and the plaintiff alloAved 884 shares in the Retsoff Company, instead of the 1,300 shares awarded to him. This results from the following computation:

These three partners had 1,500 shares of the Rock Salt Company’s stock, each owning one-third of it or 500 shares to each ; as the plaintiff allowed this 200 shares to be disposed of that left him 300. It left for the three, Reilly, Freeman and Varker, 1,300, owned as folloAA's:

Freeman........................................... 500

Varker.................•............................. 500

Reilly............................................. ■ 300

1,300

They exchanged this for 1,200 shares in the Empire Company, and for that they received shares of the Retsoff Company in proportion of five to one. But they had only 1,200 shares of Empire stock, whereas they had had 1,300 shares of the Rock Salt Company stock. They must share in the Empire stock in the proportions in which they held the Rock Company’s stock, viz.:

Freeman, T6y of 1,200 ............................. 461.54

Marker, of 1,200 .............................. 461.54

Reilly, of 1,200 ............................... 216.92

1,200.00

The distributed shares in the Retsoff stock would, therefore, stand thus, viz.:

Freeman, 461.54 X 5............................. 2,301.10

Marker, 461.54 X 5 ............................. 2,301.10

Reilly, 216.92 X 5............................... 1,384.60

6,000.00

The plaintiff has received 500, which being deducted from his 1,384.60, leaves 884.60.

The appeal taken by the plaintiff brings up also the question of the nature of the judgment to which he is entitled. We think it was error in the court below to separate the accountability of the defendants and to make a specific award of one-half of the shares against each of the defendants Freeman and Marker. Their liability to account is a joint one; they, without the consent of die plaintiff, distributed the shares, acting without consulting him and disposing of the property as if it were altogether their own. He should not be remitted to a mere individual claim against each for a proportionate share, but allowed to pursue his remedy against both and to get shares from whichever of them will be able to comply with the terms of a decree, and the judgment in that respect must be modified.

It is also obvious that a serious error has been made in the granting of an alternative judgment for distinct sums of money in case the defendants do not coinply with the terms of a decree requiring the delivery specifically of the shares of the Retsoff Company. The learned, judge below acted without any evidence whatever before him on the subject of the value of the stock of the RetsofE Company. There is nothing to justify a finding that the stock was actually worth its par value, which is the necessary effect of the decision as made.

Our conclusion upon the whole case is that the judgment must be modified, and that it should be provided by the decree that the plaintiff is entitled to recover from the defendants jointly 884.60 shares of the capital stock of the Retsoff Mining Company ; that it be adjudged that the defendants transfer, under the direction of a referee to be appointed, such 884.60 shares to the plaintiff; that, in the event of their not doing so, they jointly and severally be adjudged to pay the value of those shares, or so many of them as they shall not transfer, such value to be fixed as of the entry of the decree herein ; that, in addition thereto, the defendants jointly and severally pay to the plaintiff the amount of dividends declared upon the 884.60 shares of stock from the time they received, the same up to the present time, with interest' on the amount of each dividend from the date of its payment to them; that a referee be appointed to take proof of the value of the shares and of the amount of such dividends, and that he report to the court at Special Term his proceedings and conclusions upon the matters referred to him, and upon the coining in of the report either party may. more at Special Term for a final decree.

Judgment will be modified as herein suggested, without costs to either party on these appe’als.

Van Brunt, P. J., Barrett, Rumsey and Williams, JJ.„ concurred.

Judgment modified as directed in opinion, without costs to either party on these appeals.  