Williams v. Norton

Headnote

Entire contract—when partial recovery not permitted.—Phrase “ If no such law is passed the contract is to be null," consi/t'uction of.

Exception by defendant, to a direction of a verdict for plaintiff, directed to be heard in first instance at general term.

The assignor of the plaintiff, made a written contract with the defendant, that provided, that upon the assignor doing certain things, he should receive a stipulated compensation. At the trial a verdict was directed for the

plaintiff in the amount stipulated in the contract as reduced in a certain proportion, fixed by the fact that the services alleged to have been rendered under the contract were of a value less than were contemplated by the contract. The defendant took an exception to the direction, and the judge ordered it be heard in the first instance at general term. The following is the contract: “ This agreement, made in duplicate, in the city of New York this 23d December, 1882, Witnesseth that, whereas Ex. Norton party hereto is the owner of fifty Tennessee bonds of $1,000 each with unpaid interest from January 1, 1876, inclusive, in coupons thereon. And the said Chas. N. Gibbs agrees to indicate and point out eight of said bonds which represent old debt proper bonds of the state of Tennessee, to be reserved by said Norton ; and the said Norton agrees to exchange, at said Gibbs’ direction, the other 42 bonds—bond for bond—to be held for funding under a proposed and expected late of Tennessee at par for bonds and interest at 6 per cent. And the said Gibbs is further to attend to the funding of the same. And it is agreed that said Gibbs shall have for his part in the transaction all interest due and fundable on the said 42 exchanged bonds, the bonds themselves, the whole fifty and the interest on the eight bonds first named to belong to said Norton. The meaning of this agreement that said Ex. Norton is to receive for his eight Tennessee bonds Now 6,^ Bonds for principal and interest, and for the 42 bonds said Norton is to receive 42 New Tennessee bonds of the same amt. bearing 6# interest, aggregating $42,000, and Gibbs to receive thé interest due and fundable on said 42 old bonds under the law expected to be made by the Tennessee legislature at its coming session. If no such law is passed the contract to be null.”

The court at General Term said :—“In my opinion the exception should be sustained. The complaint does not claim that anything was due to the assignor under that contract, if it remained in force according to its tenor ; for, after alleging that instead of the expected act being passed,

another was passed, which lessened the pecuniary results, to defendant aimed at by the contract in about twenty-four per cent., it proceeds to aver, ‘ 1th that soon after the passage of the act last mentioned, the said defendant and the said Gibbs, were informed of the provisions of said act, and thereupon mutually agreed to and with each other to waive the provision contained in said written contract, that such contract should be null if the expected law were not passed, and further agreed that said contract should stand with the like force and effect as if such contract referred to the act as the same was finally passed.’ The testimony did not support these allegations. There was no proof of the waiver or of the further agreement. If there had been such proof, certain objections would be good under it, as they are under the first contract. The plaintiff must, however, support the verdict, under the written contract.

“The plaintiff could not recover, under the written contract, the rate of compensation which it provided, because the contract was annulled under the clause ‘ If no such law is passed the contract to be null.’

“ There could be no recovery for a part of the services while the rest of them remained unperformed. The obligation of Gibbs to perform the services was an entire one that the contract did not contemplate should be divided. The same is to be said of the obligation of the defendant to pay. The funding of the whole fifty were to be one operation under the expected act.

‘ ‘ Beyond this, the part of the services, for which compensation was claimed, was not performed, as required by the contract. The bonds received by the defendant, under the act that was passed, were not of the amount named in their contract.

“It is not necessary to ascertain, that the plaintiff was or was not entitled to recover the value of Gibbs’ services, or what were assumed to be services, done at defendant’s request. The plaintiff gave no proof of this value, but recovered on the basis of the written contract, by taking the

amount of compensation specified by it, and scaling ’ it down, as the legislature of Tennessee had scaled down the amount of the original bonds. This was not proof of the value of the services.”