
    The Pittsburgh Amusement Company, Appellant, v. Walton Ferguson, Respondent.
    
      Specific performance of a contract to execute a lease — where the contract is made in terms by the contract lessee ‘ ‘ as president fin- a corporation to be formed hereafter ” the corporation may enforce it — a provision for the approval of the lease by the attorneys for the respective parties — what is a compliance therewith —the attorneys may not arbitrarily refuse [approval— afoi-mal tender of the lease is not necessa/ry where the contract is repudiated—waiver by the contract lessor of the right to have the obligation on the lease of the contract lessee.
    
    In an action, brought by the Pittsburg Amusement Company against Walter Ferguson, it appeared that an agreement under seal was entered into between the defendant Ferguson, as party of the first part, and one Eirick, “as president for a corporation to be formed hereafter,” party of the second part, by which the party of the first part agreed to let to the “ party of the second part ” for a term of ninety-nine years at a specified annual rental, which the party of the second part agreed to pay, certain real property described in the agreement. The agreement further provided that “this agreement is made to insure the execution of the lease, which when executed shall be subject to the approval of the attorneys to the parties of this agreement.”
    Within the time specified in the agreement Eirick organized the plaintiff, which was the corporation contemplated by and mentioned in the agreement, and became the president thereof, and -assigned his rights under the agreement to it. The corporation duly ratified, confirmed and accepted the agreement and authorized the execution of the lease therein mentioned. Prior to the formation of the corporation, the attorneys for the respective parties to the contract met and a proposed lease was read in their presence. Some alterations were made therein and the lease, as finally corrected, was approved by the attorneys. After the formation of the plaintiff, the defendant repudiated his obligation under the agreement and refused to execute the lease which had been so approved, although the plaintiff was ready and willing to do so;
    
      Held, that the provision in the agreement for the lease, as to the approval of the lease by the' attorneys for the respective parties, contemplated that such approval should be contemporaneous with the execution of the lease and not subsequent to such execution;
    That the lease which the defendant was requested to sign, having been approved by the attorneys for the parties in accordance with the agreement, the defendant was bound to execute it;
    That the defendant, having repudiated his obligation under the agreement, a formal tender of the lease was unnecessary;
    That the attorneys for the parties had no right to arbitrarily refuse their approval of a proposed lease, but that such refusal would be effective only if based upon some reasonable ground;
    
      That the plaintiff was. entitled to maintain an action.for the specific performance of the agreement, without being first obliged to have the agreement reformed so as to'expressly provide that the approval of the attorneys should be before the execution of the lease;
    That, even assuming that the defendant was entitled -.to have the obligation'of Eirick on the lease, he should have taken that objection when he was asked to perform the agreement.
    Appeal by the plaintiff, The Pittsburgh Amusement Company, from a judgment of the Supreme Court in favor'of the defendant, entered in the office of the clerk of the county of New York on the 5th day of January, 1903, upon the decision of the court, rendered after a trial at the New York-Special Term, dismissing the plaintiff’s complaint. •
    
      James A. Douglas, for the appellant.
    
      James Emerson Carpenter, for the respondent.
   Ingraham, J.:

The complaint alleges the execution of an agreement between the defendant Ferguson “and L. M. Eirick of Buffalo, N. Y., as president for a corporation to be formed hereafter; party of the second part,” by which the party of. the first part agreed to “ let unto the said party of the second part for a term of ninety-nine (99) years, from the 1st day of April, 1901,” at a certain annual rent specified certain real property described in the contract. The party of the second part agreed to pay the rent provided for semi-annually on the first day of April and September of each year in advance during, the term of the lease. ' The property was described as being'situated “on Sixth- Avenue, in the Third .Ward, in the City of Pittsburgh, Pa., fronting eighty (80): feet on Sixth Avenue by two hundred and forty (240) feet deep to Strawberry Alley,” The party of the second part agreed to erect on said property a theatre building at an early date. The agreement gave to “ the said second party ” an option to purchase this property for the sum of $320,000, this option to be accepted at any time during the first ten.years of the lease. The agreement further provided that “ this agreement is made to insure the execution of the lease, which when executed shall be subject to the approval of the- attorneys.to the parties of this agreement.” This agreement was executed under the seal of the respective parties, a copy thereof being annexed to the complaint. The complaint further alleges that within the period of time contemplated by the parties to said agreement, and before the expiration of the time therein mentioned, viz., April 1, 1901, the said Eiriek organized the corporation contemplated by and mentioned in said agreement, viz., the Pittsburgh Amusement Company, the plaintiff, under the laws of the State, of Ohio; that thereupon the said corporation, by its board of directors, duly ratified, confirmed and accepted the said contract made between the defendant and the said Eiriek and adopted" the same and duly authorized the execution of the lease therein mentioned, of all of which the defendant had notice, and the plaintiff at the same time for a valuable consideration, received an assignment fr.om the said Eiriek of the said contract, and all his right, title and interest therein and to the lease mentioned, and thereupon became and has since continued to be, and still is, the owner thereof; that prior to the 24th day of September, 1900, the defendant and the said Eiriek met in the city of'Pittsburgh, Penn., and agreed upon the terms of the lease to be executed pursuant to said agreement, and that on or about the 24th day of September, 1900, the said lease .was drawn and approved by the attorneys to the parties to said agreement, a copy of which lease so approved is annexed to the complaint; that it was the intention of the said Eiriek and the defendant that the said lease should be drawn subject to the approval of the attorneys for the parties thereto before the said lease should be executed, and which approval was not to be after the said lease should be executed but before the execution thereof; that all of the covenants and conditions of the said contract on the part of the said Eiriek and the. plaintiff have been fully performed; that prior to the 1st day of April, 1901, and on said day due offer was made to said defendant to execute the said lease mentioned in and provided for by the "said contract, a copy of which is annexed to the complaint, and due demand was made of the defendant to perform said contract and to execute the lease therein mentioned and provided for, but the defendant refused and still refuses to perform said contract and execute said lease, thereby causing the plaintiff damage in the sum of $50,000. ‘The judgment demanded is that the agreement be reformed by striking out of the last paragraph of the agreement the words “ when executed ” and inserting in the place thereof the words “ before execution thereof; ” that the defendant be requh'ed' to execute and deliver to the -plaintiff the lease mentioned in.the contract; that the plaintiff recover its damages, and other and further relief.

' The answer' appears to admit the making .of .-the contract -and denies the .other allegations of the complaint, and as a separate defense alleges various statutes of the State of Pennsylvania where the leased property was situated and where the contract was to be carried out. It. is not, however, alleged that the contract was void under any of the provisions of the laws of the State of Pennsylvania set out in- the answer. On the trial the court -directed ¿judgment dismissing the complaint upon the ground that the last clause of the agreement which provides that “ This agreement is made to insure-the execution, of the lease, which when executed shall be subject to the approval of the attorneys to the parties of this agreement ” was “ not inserted through á mistake of the parties or either of them, but was a valid and binding provision of the said agreement upon the said Eirick and upon the defendant.” The court found that subsequent to the making of said agreement a lease was prepared for execution between the parties, a copy of which lease is annexed tó the complaint; and that neither.said Eirick.nor the defendant ever executed the said lease, nor. was- the same,ever approved by-the attorneys or the parties to said .léase, or either of them, when executed,, nor was said lease submitted -by either- of said parties to said attorneys for such approval after execution. .Judgment .was thereupon entered dismissing the complaint, from which judgment the plaintiff appeals. - -

Upon the trial the plaintiff proved the execution of the agreement and-the incorporation of the plaintiff and the assignment, by Eirick to the plaintiff -corporation; that the lease, a copy of which is annexed to the. complaint, was drawn in Pittsburgh, Penn.,, about September 20, -1909 ; that there were present at that time the attorneys for the respective parties to the contract; that the lease was-read by a Mr. McCook and that some few alterations were made ;; that the lease be finally corrected, was approved by the attorneys,, and Mr. McCook, who represented the defendant, said, “ Now, go-home and form your company,” and'instructed him when the com-pony was formed to come down and sign the lease; that this lease annexed to the amended complaint was the lease which was finally passed upon and corrected, and as it was finally drawn there on that dajr and agreed upon ; and that the plaintiff was ready and willing to execute the lease, provided for by the contract, and was still ready and willing to execute it. There was further evidence of the vice-president and treasurer of the company that, after the agreement as to the form of the lease, he had an interview with the defendant in New York about March 8,1901; that he said to the defendant that he was the representative of the plaintiff and came there for the purpose of executing a lease which he was authorized to do by the president, .who was unable to be present; that the defendant said, I have no lease to make; all negotiations are off,” to which the witness replied, Well, I would like to have some explanation,” when the defendant said, There is no explanation to make; all negotiations are off; ” the witness got up out of his chair and walked away. This witness further testified that at the interview in Pittsburgh Mr. McCook, who was the defendant’s attorney, and the attorney for Eirick agreed to .the form of the lease which was annexed to the complaint; and the attorney for Eirick also testified as to this interview and that the form of the lease was assented to by the attorneys for both parties. There was further evidence by the gentleman who acted as attorney for the plaintiff that on the first of April he had an interview with the defendant and on behalf of the plaintiff made"an offer to execute the lease, when the defendant said : “We have had talk enough about this and I have no lease to make nor property to sell in Pittsburgh.”

I do not think the construction placed upon this agreement can be sustained. The agreement was an executory contract by which the defendant agreed to lease to Eirick the property described in the agreement. It does not purport to be a lease, but a contract for a lease which was to be subsequently executed. The provision in the agreement as to the approval of the lease by the attorneys to the parties thereto clearly contemplated that it should be subject to the approval of the attorneys, but such an approval was to be at the time of execution, and not subsequent to the execution. What was required was that contemporaneously with the execution of the lease there should be the approval of the attorneys for the respect-five parties, and the'lease having been dúly approved by the attorneys for the respective parties, such a,n approval existed when the plaintiff demanded that the' defendant should execute it and .when he repudiated his agreement,,-J%t may be, Observed in passing that, 'the attorneys had no absolute right to refuse to approve, but 'that -•such refusal could only be effective if based upon some reasonable -ground.^'We are-not bound to give to such an agreement an unnatural construction which would make it absurd. We are to' ascertain -so far as possible the intention of the parties and carry that intention into effect; and when the- contract provides that the agreement fis n^ade to insure the execution of a lease which, when executed, -shall be subject to the approval of the attorneys for the parties who -are to execute it, the intention quite clearly expressed is that it was ■to be approved by the attorneys for the respective parties, before -either could require the other to execute it.' This, lease when ready for execution had been approved by the attorneys for -the parties. 'The lease as approved was in accordance with the contract; and I' ■■'think upon this evidence that the defendant was .bound :tp execute fit. The defendant having repudiated his obligation under the contract, a. fdrrnal tender of the lease was unnecessary, and I can see no-reason why the plaintiff was not entitled to maintain an action for =a- specific performance of the contract without.reformation. Nor is ■¡there anything in the point that the plaintiff, as assignee of Eirick, •could not.apply to reform the contract. The form of the lease indi- . mates that it was the intention of the parties that a corporation should •be formed, of which Eirick was to be president, and that the contract .should be for the benefit of the corporation, and this corporation was -duly, formed. Eirick was its president. He assigned-his rights to the •¡corporation which■ accepted the contract as made for fits benefit; «and the corporation was: ready to execute the lease. But assuming fill at the defendant was entitled to have-the obligation of Eirick, he ¡■took no such objection when asked to comply with his "contract He simply repudiated all liability tinder the contract and the obligation assumed by him thereunder. When the application was-¡made to the defendant on behalf of Eirick and the company to exe- • mute the lease, if defendant, wished to have the obligation of Eirick, .-he should have taken that-objection; and any right that the defendant has-in this respect can be protected by the judgment decreeing ^.specific performance of the agreement. •

It follows that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the «event. • . <

Van' Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., «concurred.

Judgment reversed and new trial ordered, costs to appellant to abide event.  