
    John Vandermulen, Jr., Resp’t, v. Jane Vandermulen, App’lt. (1) Leonard Doelman, Resp’t, v. Same. (2) Myron Doelman, Resp’t, v. Same. (3)
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Contract—Construction of.
    The defendant and her three sons doing business as partners, purchased and occupied for business purposes certain property as tenants in common, the consideration being paid by the defendant. Upon the dissolution of the partner, hip, a deed from the three sons to the defendant, of their interest in the land, and a lease of the premises from the defendant to two of the sons for ten years with a reservation to the lessor of a right to terminate the lease on a sale of the premises were executed. At the same' time she executed a contract with her three sons which provided that should said lease become terminated before the expiration of the ten years therein named by the sale of the said premises therein provided, or if said premises be at any time sold, the said party of the first part -will account for and pay over to the said p irties of the second part, each one-fourth- of all moneys received from the purchase-price of said lands and premises, over and above the sum cf $4,350, which last named sum together with the remaining one-fourth of all moneys received over and above the same, shall be and remain the property of the party of the .first part,” A portion of the said premises was taken for railroad use by proceedings in inritum under the statute, in the exercise of the right of eminent domain, the defendant receiving $7,500. Held, that the sale of the whole of the premises was not a condition upon which the obligation of the defendant to account depended. That the liability to account existed whenever by sale of the whole or any part of the premises, the proceeds exceeded the sum of $4,200.
    2. Same—What a sale within the meaning of the contract.
    Whether the taking by the railroad company in this case was a sale within the meaning of the contract, did not depend upon the exact nature of the interest the company acquired under the proceedings. The proceedings operated as a sale of the property taken and a purchase thereof by the company
    3. Same—Who could maintain an action.
    The covenant, was an undertaking with each of the covenantees to pay him his share of- the proceeds. The interests of the sons in the land were several, and each, could maintain a separate action for his- portion of the money received.
    3. Same—Consideration—From what presumed when not expressed.
    The consideration of a contract may be presumed when not expressed; or may be gathered from recitals or other language used.
    5. Same—What'A good consideration.'
    The conveyance by the sons to the mother was a good consideration for her covenant, and the deed and covenant being parts of one transaction, the latter referring to the former, it is plain that the giving of the deed was one, at least, of the considerations of the covenant.
    
      6. Same—Effect of general words following an enumeration of particulars.
    General words following an enumeration of particulars, are sometimes under the doctrine of ejusdem generis, hold to cover only matters of the same general character of the particulars, or are treated as a comprehensive . expression, embracing all t.ie things particularly enumerated. But in all cases it is a question of intention.
    (1) Appeal from the judgment of the general term of"the superior court of Buffalo affirming a judgment in. favor of the plaintiff entered upon a verdict of a jury rendered at the trial term.
    (2) The second case is an appeal from the judgment of the general term of the superior court of Buffalo affirming a judgment in favor of the plaintiff entered upon the decision of the trial judge, the case being tried without a jury. By a stipulation entered into between the parties (this case was based upon the same contract as [1]), it was agreed that the decision herein should follow the decision in that case.
    (3) The third case is an appeal from the judgment of the general term of the superior court of Buffalo affirming a judgment in favor of the plaintiff entered upon the decision of the trial judge at the trial term without a jury the jury having been waived.
    
      James M. Humphrey, for appl’t; George J. Sicard, for resp’t.
   Andrews, J.

The defense that the contract was altered after its execution by the interlineation of the words.“or if said premises be at any time sold,” was submitted to the jury upon the evidence, and the finding of -the jury adversely to this contention concludes the defendant. .The finding, moreover, is supported by the weight and preponderance of testimony.

The principal question relates to the construction of the. clause in the contract in which the words referred to are incorporated, and which provides ‘ ‘ that should said lease become terminated before the expiration of the ten years therein named, by the sale of the said premises therein provided, or if said premises be at any time sold, the said party of the first part will account for and pay over to the said parties of the second' part each one-fourth of all moneys received from the purchase price of said lands and premises over and above the sum of $4,250, which last named sum, together with the remaining one-fourth of all moneys received over and above the same, shall be and remain the property of the party of of the first part.”

The principal contention on the part of the defendant is that the sale contemplated in this clause was a voluntary sale, and that the obligation on her part to account for the proceeds of the land “in case of a sale,” does not apply to the compensation awarded to and received by her on the taking by the New York, West Shore and Buffalo Railroad Company of a portion of the premises for railroad uses by proceedings in invitum, under the statute, in the exercise of the right of eminent domain. Whatever may be the true meaning of the word sale, as used in the contract, it is clear that the transaction by which land is condemned to the use of a railroad operates when perfected as a statute transfer of the title to the corporation, and in a legal sense is a purchase of the land, or an interest in the land by the corporation for the price ascertained by the constitutional method. Shaw, Ch. J., Parks v. City of Boston, 15 Pick., 198.

All private titles are subject to be affected by this superior power of the state, and unless the parties voluntarily agree, the statute steps in and makes an agreement between the owner and the corporation, and enforces its performance. The assent of the owner to the particular transaction is not affirmatively required, but in theory the owner assents to this exercise of sovereign power and takes the compensation awarded as a substitute for the land or such interest in it as the law authorizes to be taken. Whether the taking by the railroad company in this case was a sale within the meaning of the contract, does not at all depend, we think, upon the exact nature of the interest the company acquired under the proceedings. It, at the least, acquired a title commensurate with its corporate existence as fixed in its articles, or as it might be extended by legislation, and this title, also, would, under the statute, vest in a new corporation which might be organized for the purchase of the property and franchises of. the original corporation under a judgment or decree of the court. Chapter 140, Laws of 1850, §§ 13, 18; chap 282, id., 1854, § 1; chap. 199, id., 1857, § 1.

The proceedings operated as a sale of the property taken and a purchase thereof by the company, and the interest acquired, whatever its exact legal character, was scarcely less than a fee. If a technical reversion remained in the defendant the interest was so remote that its value is scarcely appreciable.

In determining whether the compulsory taking by the railroad company was a sale within the contract, the surroundings may be considered. The dissolution of the partnership between the defendant and her three sons was the occasion of the contract. The members of the firm at the commencement of the business had purchased the premises occupied by the firm for the consideration of $4,000, and took the title as tenants in common. The consideration was paid mainly, if not wholly, by the defendant. It is inferable that in December, 1871, when the contract was made, it was contemplated that the property would advance in value. Three separate instruments were executed at the same time, viz.:. (1) A deed from the three sons to the defendant of their interest in the land. (2) A lease of the premises from the defendant to two of the sons for ten years at an annual rent of $350, with a reservation to the lessor of a right to terminate the lease on a sale of the premises. (3) The contract in question, which secured to the three sons in case of a sale by the mother, of the land, a portion of the purchase money equivalent to their original interest in the land, subject, however, to the provision that the mother should first be reimbursed the advances made by her on the original purchase.

This paraphrase of the contract is, we think, justified by its language, read in connection with the surrounding circumstances. The main purpose, evidently, was that the mother should be secured for her advances and have the use of the land, but if she parted with it she should divide the proceeds according to the original interest, after her advances were paid. Any sale by which she was divested of title, and her interest in the land converted into money was, we think, a sale within the fair intendment of the contract. It would defeat the obvious purpose, and would be repugnant to the spirit of the contract to permit the defendant to retain the whole compensation received from the company, on the plea that a compulsory sale was not within the contract. The compensation awarded^ for the part taken was $7,500,. and the part taken constituted a small and the least valuable part of the premises, and if the whole had been taken the contention of the defendant, if admitted, would justify the defendant in retaining compensation for the whole.

We have assumed, thus far, that a sale, whether during the existence of the lease or at any time afterwards, was within the meaning of the contract. It is insisted, however, by the counsel for the defendant that the words “or if the premises be at any time sold,” are to be restrained by the prior words providing for the case of a sale during the •ten years covered by the lease. This contention is unfounded. General words following an enumeration of particulars are sometimes, under the doctrine of ejusdem generis, held to cover only matters of the same general character of the particulars, or are treated as a comprehensive expression embracing all the things particularly enumerated. But in all cases it is a question of intention. It would be a perversion of the role to apply it to qualify or limit a clause on its face broader than the clauses which precede it, and which was inserted for the very purpose of creating an alternative obligation.

It is also claimed that there was no consideration for the Undertaking of the defendant. The contract recites the conveyance by the sons to the mother of their interest in land, and also the lease executed by her to the two sons, and that the conveyance to the mother was made at her request, and these recitals are followed by the covenant in question, which commences “Now, therefore, as a further agreement between said parties and in.consideration of one dollar,” etc. The consideration of a contract may be presumed when not expressed, or may be gathered from recitals or other language used. The conveyance by the sons to the mother was good consideration for her covenant, and the deed and covenant being parts of one transaction, the latter referring to the former, it is plain that the giving of the deed was one, at least, of the considerations of the covenant.

The further point is taken that the covenantor was to account to the sons jointly and not severally, and that a joint action only can be maintained by the covenantees. But we think the covenant is by its true construction an undertaking by each of the covenantees to pay him his share of the proceeds. The interests of the sons in the land were several, and while they are joined as parties of the second part in the contract, the covenant is to pay “each one-fourth of all moneys received” over and above the sum specified. Pearce v. Hitchcock, 2 N. Y., 388. We think also the sale of the whole of the premises was not a condition upon which the obligation of the defendant to account depended. The liability to account existed whenever, by sale of the whole or any part of the premises, the proceeds exceeded the sum of $.4,250. Any other construction would enable the defendant, by reserving from the sale a small part of the premises, to appropriate the entire proceeds, however much they might exceed her advances. The exceptions to the charge are not well taken. The first two are plainly untenable. The last one is based on language not used by the judge. There is doubtless some confusion in the charge, as printed, but it is clear that the judge intended to leave to the jury the question of the alleged alteration in the contract. We are of opinion that the record discloses no legal error which would justify a reversal of the judgment.

The case of Myron Doelman, argued at the same time with this case, presents but a single additional question, which arises out of the award made in the condemnation proceedings to Henry Vandermulen for his interest as lessee in the premises taken by the railroad company. The judgment in that case held the defendant liable to account to the plaintiff for one-fourth of the sum of $591.42, awarded to the lessee for the value of his leasehold interest over and above the value of the improvements placed-by her upon the premises. The court was authorized to find that the lease was given by the defendant after notice by the railroad company of its intention to take the lands, for the purpose of diverting a part of the compensation to be obtained for the land, from herself to the lessee, another son of the defendant. We think, for the purposes of this action, this amount was justly regarded as compensation received by her.

The judgment in both cases should be affirmed,

All concur.  