
    Francis A. Jewett, Resp’t, v. Simeon Brownell, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    1. Contract—Stock transaction—Nature of recovery.
    Where in an action to recover a sum of money due on an agreement it appeared that the plaintiff and defendant made an exchange of certain stock, the plaintiff agreed not to sell ¿40 shares, which he received at a price below par, within two year’s, and the defendant, to protect him from loss which he might be subjected to by holding the stock, transferred to him sixty other shares, with the understanding that the defendant should be at liberty to redeem the same by paying a certain sum of money,, and in case the money should not be paid, the plaintiff should become the-absolute owner of the sixty shares. The money has not been paid, and the plaintiff retains the stock; the latter bases his right to a recovery of" the money on an implied promise contained in the agreement as follows; “ Said Jewett shall be entitled- to receive from said Brownell at the expiration of said two years * * * a sum of money,” etc. Held, that the title to the sixty shares of stock became vested in the plaintiff absolutely; that the plaintiff cannot recover the money claimed by him upon, the theory of an implied promise without an allegation of an offer to return the sixty shares of stock upon such payment to the defendant.
    3. Same—Implied promise—Must be unequivocal.
    
      Held,, that in the absence of an express promise to pay, the declaration of indebtedness must be positive and unequivocal to form the basis of an implied obligation.
    Appeal by the defendant from a judgment entered in favor of the plaintiff, upon the overruling of a demurrer to-the complaint.
    
      Westfall & Whitcomb, for app’lt; F. W. Betts, for resp’t.
   Ingalls, J.

—The Agreement between the parties, which is in writing, is set out in the complaint, and constitutes the basis of the plaintiff’s alleged cause of action.

Such agreement obviously states so imperfectly the transaction between the parties that it is difficult to comprehend clearly their real intention in regard to the payment by the-defendant of the ten per cent, and the retention by the-plaintiff of the sixty shares of stock. We infer that the parties made an exchange of stocks for some purpose which is not disclosed, and the plaintiff agreed not to sell the 240 shares which he received from the defendant at a price below par within two years from the first day of January, 1882. The defendant transferred to the plaintiff sixty shares of the same stock, and the agreement provides in relation thereto as follows:

To be held by the said Jewett as collateral security for the payment of a certain sum of money, upon the terms, hereafter set forth and declared in respect to the same, which said assignments and transfers said Jewett hereby accepts.”

The certain sum of money doubtless refers to that which is provided for in the agreement, as follows:

“Third. Said Jewett shall be entitled to receive at the expiration of said period of two years, from the first day of January, 1882, a sum equal to ten per centum per annum upon the amount of the par value of such of said 240 shares, as shall be from time to time held by the said Jewett, and if, upon the expiration of said period, the said Brownell shall not have paid to the said Jewitt the said interest, then the said sixty shares shall become the absolute property of said Jewett.”

The plaintiff states in the complaint that he did not within the prescribed period dispose of any part of the 240 shares of stock, and that he had fully and faithfully performed all the covenants and conditions in the said agreement on his part to be performed. The real question upon this appeal is whether the following provision of the agreement:

Third. Said Jewett, shall be entitled to receive “from said Brownell, at the expiration of said period of two years from said first day of January, A. D., 1882, a sum equal to ten percentum per annum, upon the amount of the par value of such of said 240 shares as shall be from time to time held by the said Jewett, and if, upon the expiration ■of said period, the said Brownell, shall not have paid to the said Jewett, the said interest, then the said sixty shares shall become the absolute property of said Jewett,” considered in connection with the other provisions of the agreement, raises such an implied obligation on the part of the defendant to pay the plaintiff a sum of money equal to ten per cent, upon the par value of the 240 shares of stock held by the plaintiff, as to constitute a cause of action, upon which the plaintiff is entitled to recover in this action. In determining this question, the entire agreement is to be considered, with the view to ascertain what was the real intention of the parties, in regard to the transfer of the said sixty shares of stock, and the undertaking of the defendant to pay a sum equal to ten percentum per annum, upon the amount of the par value of such of said 240 shares as should be from time to time held by the said Jewett. We are satisfied that it was not the intention of the parties to the agreement, nor is it imperative upon the court to hold, that by the terms of the agreement, the defendant has absolutely declared himself indebted to the plaintiff. In such a sense, as that a promise to pay such money should be implied, and an obligation thereby created in favor of the "plaintiff against the defendant. It is not even contended by the counsel for the plaintiff, that the agreement contains an express promise by defendant, to pay any sum whatever, but that such a promise may properly be implied from the terms of the agreement, which is as follows: Said Jewettshall be entitled to receive from said Brownell, at the expiration of said period of two years from the first day of January, 1882, a sum of money, etc.,” coupled with the further provision, “And if, upon the expiration of said period, the said Brownell, shall not have paid to said Jewett * * * then the said sixty shares shall become the absolute property of said-Jewett.”

We_ are convinced that the agreement, fairly construed, contains no such absolute declaration of indebtedness by the defendant to the plaintiff, from which the law will imply a promise to pay the money claimed by the plaintiff:. “ Said Jewett shall be entitled to receive from said Brownell a sum of money.” In what manner? According to the terms of the contract, and agreeably to the intention of the parties thereto. Not absolutely upon a confessed indebtedness, which obviously was not contemplated by the parties. We think the arrangement was simply this. The plaintiff-was not to sell the 240 shares of stock at less than par within two years and the defendant, to protect the plaintiff from loss to which he might be subjected by holding the stock, transferred to plaintiff the sixty shares, with the understanding that the defendant should be at liberty to redeem the same by paying the money specified in the contract, and in case tíre money should not be paid,the plaintiff" was to become the absolute owner of the stock. It became optional with the defendant to pay the money or forfeit the stock, and it seems that he chose the latter.

The language employed in the contract declaring such forfeiture could not be more emphatic. “And if upon the expiration of that period the said Brownell shall not have paid to said Jewett the said interest, then the said sixty shares shall become the absolute property of said Jewett.” Brownell has not paid, and Jewett retains the stock, and we discover nothing to indicate that Jewett purposes to relinquish the same.

In his complaint he does not offer to return the stock to Brownell upon receiving the money claimed by him, nor does he allege therein a willingness to return the same to Brownell, as a part of the statement of his cause of action herein. We think the title to the fifty shares of stock became vested in the plaintiff absolutely. Bunacleugh v. Poolman, 3 Daly, 236; Langdon v Buel, 9 Wend., 80.

It would seem to be be inequitable, and unjust, to allow the plaintiff, upon the facts stated in his complaint, to recover the money claimed by him, upon the theory of an implied promise to pay the money, without the allegation of an offer to return the stock upon such payment to the defendant. We do not intend to intimate that even with such additional allegation in the complaint a valid cause of action would be stated. The plaintiff, in his complaint, demanded judgment for $2,500, with interest from the 1st-day of January, 1882. The par value of the stock transferred to the plaintiff amounts to $3,000, and there is no-allegation in the complaint that it is not worth such sum.

We think the facts disclosed by the complaint negative the idea that the parties intended, or understood, that the defendant acknowledged an absolute indebtedness to the plaintiff upon which a recovery could be had as upon promise to pay money. In the absence of an express-promise to pay, the declaration of indebtedness should be-positive and unequivocal, to form the basis of an implied: obligation, and, we think, this case falls far short of such a declaration. Culver v. Sisson, 3 N. Y., 264; Salisbury v. Philips, 10 Johns., 57; Turk v. Ridge, 41 N. Y., 201; Weed v. Covill, 14 Barb., 242; Suffield v. Baskervil, 2 Modern, 36; Coleman v. Van Rensselaer, 44 How. Pr. Rep., 368.

The case which we are considering is, we think, distinguishable from that class of cases where there is to be-found an express acknowledgment or declaration of indebtedness, as in Elder v. Rouse (15 Wend., 218).

The judgment should be reversed, with costs, and the demurrer interposed by the defendant sustained, with leave,, to the plaintiff to amend his complaint within twenty days upon paymént of costs to the defendant.

Learned, P. J.. concurs; Landon, J., dissents.  