O'Brien v. McDonald — 60 N.Y. St. Rep. 748

Majority

p. 748

Miles M. O’Brien et al., as Receivers, etc., App’lts, v. Ronald T. McDonald et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 18, 1894.)

Headnote

Bills and notes—Contbact.

No recovery can be had on notes given in pursuance of a contract, without showing performance of such contract, though illegal or ultra vires, or unless the contract is rescinded and the maker put in statu quo.

Appeal from a judgment dismissing the complaint.

Louis Marshall, for app’lts ; W. B. Putney, for resp’ts.

This action was brought to recover upon two promissory notes made by one Ronald T. McDonald to the order of the Ft. Wayne Electric Company, and indorsed by said company, and, thus indorsed, delivered to the Madison Square Bank, of which the plaintiffs are receivers. There is no dispute as to the facts established by the evidence; the controversies arising as to the deductions to be drawn therefrom. It appears that prior to January 27, 1891, the Madison Square Bank had taken proceedings to increase its capital stock, and to issue and sell the same; and the bank requested the defendant Ft. Wayne Electric Company to purchase a certain amount of such increased stock, to wit, 1,000 shares. Negotiations were had, which resulted in an agreement that said defendant company should buy said 1,000 shares of stock at $150 per share, in consideration of the bank making, a certain agreement in writing, as follows: “This agreement, made this 27th day of January, 1891, by and between R. T. McDonald, of Fort Wayne, Indiana, and New York, party of the first part, and the Madison Square Bank, of the city of New York, a corporation organized under the laws of the state of New York, party of the second part, witnesseth, that in consideration of the discount by the party of the second part of three promissory notes of the party of the first part, each for fifty thousand dollars ($50,000) and interest, and each payable in six months from the date hereof, made payable to, and indorsed by, the Fort Wayne Electric Company, the said party of the first part agrees to, and does, at the time of the execution hereof, deposit with the said party of the second part bonds of the Louisiana Electric Light Company, a corporation organized and doing business in New Orleans, in the- state of Louisiana, to the amount, at par, of two hundred thousand dollars ($200,000,) with interest coupons thereto attached, as collateral security for the payment of said notes, and for notes which may be given in renewal therefor, upon the following terms and conditions, to wit: The said bonds are a part of an issue of bonds amounting to $600,000, and the party of the second part is to have the right to sell and pledge bonds, or any number thereof, at any time while said notes, or notes given in renewal therefor, shall be outstanding, and shall account for the proceeds in such sale to the extent of ninety per cent. (90 per cent.) of the face value of the bonds sold, and no more. After having sold said pledged bonds the said party of the second part shall have the right at any time while this contract remains in force, and not fully performed, to sell other bonds of the same issue then owned and held by the party of the first part at and for a price or sum not less than ninety per cent. (90 per cent.) of their face value; and in such case the party of the second part shall account for the proceeds on the bonds so sold to the extent of ninety per cent. (90 per cent.) of their face value; and in consideration of the premises the party of the second part agrees that the party of the first part shall not be called upon to pay his said notes until said two hundred thousand dollars ($200,000) pledged bonds have been sold, otherwise than by giving renewal notes therefor, from time to time, as the notes held mature; the party of

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the second part agreeing to accept such renewal notes for said one hundred and fifty thousand dollars ($150,000), from time to time, until said pledged bonds shall have been sold or mature. The party of 'the second part is to recei ve the interest on pledged bonds so long as it shall hold the same, and apply said interest on account of said notes. It is further agreed that the party of the first part shall also have the right to effect the sale of said pledged bonds at any time, but in such case the party of the second part is to receive the proceeds thereon, and apply the same, as far as required, in payment of said discounted notes, or notes given in renewal therefor.”

And in consideration of its discounting for the said company the three notes mentioned in said agreement, and payable under and pursuant to the terms thereof. Thereupon, and as part and parcel of the transaction, the said company delivered to the bank, together with the said three notes, each for $50,000, bonds of the Louisiana Electric-Light Company, of the par value of $200,000, as and for security for the payment of said notes, or the notes which were to be given in renewal therefor, in accordance with the terms of the contract first above set forth. Thereupon, said bank credited the said Ft. Wayne Electric Company with the proceeds of said notes; and a draft or check was made by -said company, as against said credit, and in favor of the bank, for said $150,000, the purchase price of said shares of stock, and the stock was thereafter delivered to said Ft. Wayne Company. The bonds in question have never been sold. The defendants gave, and the bank received, renewal notes, down to December 1893,—the date of the maturity of the note set forth in the complaint,—when the defendant tendered new renewal notes, which- w'ere refused by the plaintiffs. It further appeared that no money ever pased between these parties in respect to this transaction, and that on the 9th of February, 1891, the transaction was reported to the board of directors of the bank at a regularly called meeting, and by it formally approved; and it was further ordered at this meeting that the bank’s counsel should examine this agreement, as to its legality. At a meeting on March 9, 1891, a communication was presented from the bank’s counsel in response to the resolution passed at the meeting of February 9, 1891; and a resolution was introduced that McDonald be requested to amend his agreement so that the loans made to him be in conformity with the counsel’s recommendation, and that the maturity of the loan be fixed at some reasonable and definite period. The notes were renewed from time to time, and the old notes surrendered; the board of directors not passing upon the renewal before the renewal notes were executed, but approving of the same afterwards. Upon this state of facts the court held that no right of recovery, as to the notes, existed in the plaintiffs, and dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

It is urged that the burden of proof rests upon the defendants to establish the execution of a valid contract whereby the defendants became entitled to a renewal of their obligation to the bank until such time as the bonds of the Louisiana Electric-Light Com

p. 751

pany pledged as security could be sold at 90 per cent, of their face value, and that the contract was not authorized by the directors of the bank, and was therefore ineffectual as an agreement to extend the time of payment of the indebtedness owing by the defendants to the plaintiffs. In regard to these propositions, it seems to be sufficient to say that the bank came into possession of these obligations upon the part of the defendant by virtue of that contract. They came into possession of those bonds, which they have ever since the date of the contract held, and upon which they have collected the interest: and neither the bank nor its receivers have made any effort whatever to rescind the contract, and place themselves upon what legal rights the transaction might give them, independent of the obligations arising out of the contract. The notes being the offspring of the agreement, connected therewith, and forming part and parcel of the same transaction, the rights and obligations of the parties to the notes, as between themselves, are regulated by the terms of the agreement; and these plaintiffs cannot enforce one part of the contract, viz. the notes, and be relieved from the obligations of another part of the contract, viz. the paper which is styled the “Agreement.” It is a familiar principle that papers forming part of the same transaction must be read together. Hence, when the question as to the liability of the defendants upon the notes is to be determined, it must be gauged, not only by the contents of the notes themselves, but of the agreement of which they formed a part. The makers and indorsers of these notes entered into an agreement with this bank, by which the latter received the notes. If that agreement was illegal, or beyond the power of the bank to make, then the only way in which the bank can escape its obligations under the agreement is to rescind the same, return that which they have received in pursuance thereof, and place the parties in the position in which they were before the agreement was made, or at least offer to do so. But the receivers of such bank—representing the bank—claimed to hold all that they got under the agreement, and all the rights which the contract gives to them, without being bound at all by the obligations entered into upon the part of the bank. We do not understand, even where a portion of a contract in ultra vires, that a corporation can recover upon that portion of the contract which they claim to be within their powers, and repudiate the balance as ultra vires. The same reasoning will apply to the further claim that, assuming the alleged contract to he authorized by the directors, it nevertheless has no binding force upon the plaintiffs, since the contract, as made, is contrary to public policy. The most that such a condition of affairs, even if it existed, would give to the bank, would be the right of rescission ; and. as has already been observed, there has been no attempt to rescind, and they are now seeking to enforce a part of this very contract, which, according to their claim, is obnoxious to public policy. This reasoning also applies to the claim that the contract was illegal, and that m consequence thereof the plaintiffs are entitled to the immediate payment of the money received by the defendants, as money had and received by them for the use of the bank,

p. 752

and can enforce the notes in suit, given as security for such indebtedness, without regard to the terms of the agreement pleaded in the answer. As suggested by the court below, this is not an action for money had and received, but an action upon the notes, and the plaintiffs can only succeed by reason of the validity of these notes. They have chosen to place their right of recovery upon these notes ; and no matter what ultimate rights the bank may have, unless they are entitled to recover upon these notes by reason of the provisions of the notes themselves, no re covery can be had in this action. As already demonstrated, no right of recovery exists upon these notes, because they are part and parcel of a contract which the bank has not fulfilled, which contract, if illegal, the bank has not attempted to rescind, but has retained all that it received under it, arid now proposes, while claiming to be relieved from its own obligation, to enforce the obligation of the other party to the contract. No such rule of law has as yet obtained in this state. The claim made that there was some misrepresentation in regard to the amount of the issue of the bonds, a part of which .were pledged, rests upon precisely the same fonndation. If the bank claims to be relieved because of such misrepresentation, -which is not entirely apparent upon the face of the contract, certainly, they might have had the right to rescind, or to sue for any damages sustained by reason of such misrepresentation. But they have done neither. They simply proposed to compel these defendants to keep their part of the contract, without being bound, as already stated, by the terms of the contract in respect to their own obligations. We think, therefore, that the court below was entirely right in dismissing the complaint in this case, and, furthermore, that the rights of the parties do not depend upon the question as to whether the transaction in regard to this money was a mere matter of bookkeeping or not. That may be a matter of importance when the question as to the rights of these receivers comes up in a different form.

The judgment should be affirmed, with costs.

All concur.