Petze v. Leary — 117 A.D. 829

Majority

p. 829

Henry H. Petze, Appellant, v. Daniel J. Leary, Respondent.

Second Department,

March 1, 1907.

Headnote

Contract — pleading — promise founded on performance of existing obligations.

A complaint alleging in substance that simultaneously with the plaintiff’s contract to serve "as clerk of a corporation at a fixed salary, the defendant, who was president, stockholder and director thereof, promised to'give him fifty shares of stock “in, consideration of the faithful compliance by the plaintiff with the terms of the aforesaid contract between the said corporation and the plaintiff," which promise he failed to perform, does not state a cause of action as the defendant’s contract was without consideration.

It seems, that had the plaintiff alleged that his contract for services with the corporation had been the consideration for the defendant’s promise or that the plaintiff had been induced to make his contract with the corporation by the defendant’s promise, a consideration would have been stated.

When a complaint sets out the consideration for an alleged contract it excludes proof of other or further consideration.

Appeal by the plaintiff, Henry H. Petze, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 6th day of July, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, Sustaining the defendant’s demurrer to the complaint.

It is alleged in the complaint that the plaintiff made a written contract with a named corporation, of which this defendant was a stockholder, director and president, to serve it as chief clerk and auditor for five years at a salary and compensation fixed therein. It is next alleged that simultaneously with the making thereof the defendant made a written contract with the plaintiff that “ in consideration of the faithful compliance by the plaintiff with the terms of the aforesaid contract between the said corporation and theplaintiff,” the defendant would at the end thereof give him 50 shares of the stock of the said corporation. It is then alleged that in the first year of such service the defendant “ personally instigated and procured ” the discharge of the plaintiff by the said corporation from such employment, thereby preventing him from earning of

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the defendant the said 5Ó shares, of the value of $100 each, to his damage, etc.; and the prayer is for $5,000 .damages.

A demurrer to the complaint for not stating facts sufficient was sustained.

William S. Maddox, for the appellant.

Paul Gorham [David McClure with him on the brief], for the respondent.

If the defendant's contract had been made after the plaintiff's contract of service with the corporation, it would be without consideration to the defendant and void, for the plaintiff's agreement to do what he was already bound to do by the prior contract wou1d be no legal consideration (Carpenter v. Taylor, 164 N. Y. 171 ).

But the allegation is that they were made simultaneously. Does that make a difference % The essence is the same. There is. no difference in respect of the consideration to say,. “ I will give you $1-00 if you perform your contract of service made with B yester-* day,” or “ I will give you $100 if you perform your contract of service made with B this same instant:” ' In. each ease the consideration for your promise is that your promisee perform an existing Contract obligation of his to a third person. That .obligation exists when you complete your promise, whether it be a day old or comes into, existence concurrently with your promiseit exists at ' the time your promise takes effect.

If the making of the .contract by the plaintiff with the corporation had been the consideration to the defendant for the making of the contract by him with-the plaintiff, or, conversely, if the plaintiff had been induced to enter into his contract with the .corporation, by the contract;of the defendant with him, there wotild be a legal consideration. But that is negatived by the allegation of the complaint that the consideration was that the plaintiff should faithfully perfoim-his contract of service with the corporation—not that he. shotdd make if- ‘ Tiffs excludes any .other or further consideration, for it is alleged to be the consideration.

The making of the., two contracts simultaneously might enable a

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finding of fact to be made that the consideration or inducement to the defendant to make his contract was the making of the other contract by the plaintiff, but we have not to do with, a question of evidence but with one of ’ pleading; and we may not assume that that was the consideration, for the complaint alleges that the consideration was another thing, i. e., that the plaintiff should faithfully keep his contract of service. If the complaint had alleged .that each contract was the consideration for the other, this question of pleading would not be here, although a question might arise on the trial whether such consideration did not need to be expressed in the contract with the defendant in order to be proved.

The interlocutory judgment should be affirmed.

Hlrsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Interlocutory judgment affirmed, with costs.

Cases cited

Carpenter v. Taylor 164 N. Y. 171 N.Y. 1900-10-02 p. 830