and 100 New York State Reporter foreclosed; that the plaintiff had assumed payment of the mortgage, and therefore would be liable if there should be a deficiency; that the plaintiff feared there would be a deficiency on a sale under a decree of foreclosure, and offered to give a deed of the property to Mr. Sterling, or to any person named by him; and that thereupon the deed, notes, and lease were all given. As above set forth, Mr. Sterling states that Mr. Betts had no authority to agree that the deed should be given as collateral security, and Mr. Betts states that there was no agreement whatever between him and the plaintiff that the deed should be so given. Mr. Sterling, however, is fair and candid enough to make the following admission in his affidavit: "But he asked, as a further matter of favor, that he should be given an option until October, 1899, in which to repurchase the premises on certain conditions; and to this I assented." This admission I regard as of importance; for, so far as the decision of this motion is concerned, it is not material whether the deed was to be regarded as collateral security, or whether there was an agreement that the plaintiff might repurchase the premises, and the final disposition of this action will not depend upon the determination of difficult questions of law, but of those questions of fact. The plaintiff's affidavit is open to the criticism that he swears to conclusions, rather than to facts, but I assume that what he intended to swear to was that there were conversations between him and Betts by which an agreement was made that the deed should be regarded as collateral security. It is this that is flatly contradicted by Mr. Betts. It appears, however, by the above-quoted admission of Mr. Sterling, that, whether the plaintiff or Mr. Betts is correct in his statement as to whether there was an agreement that the deed should be given as collateral security, the plaintiff did have an option from March, 1898, to October, 1899, to repurchase the property, on some conditions, which are not stated. Under these circumstances, I think the motion for an injunction until the trial of the action should be granted. I cannot determine upon the ex parte affidavits of the plaintiff and Mr. Betts whether there was an agreement that the deed should be regarded as collateral security, and the plaintiff, as matter of common fairness, should be given an opportunity to have that question tried in the usual way before he is dispossessed. Mr. Sterling and Mr. Betts both state that Mr. Betts had no authority to make such an agreement. But, even if he did not, he may have had apparent authority, so that, if he did make the agreement, Mr. Sterling would be bound by it. Moreover, as there was an agreement, which was apparently in force up to as late a time as October, 1899, that the plaintiff might repurchase the premises, the plaintiff ought to have the opportunity of showing, if he can, that the time within which he was originally given the right to repurchase had been in some way extended, and that the conditions upon which the right to repurchase depended were fulfilled. Of course, I cannot predict whether the plaintiff will succeed in the trial, but it seems to me that he ought not to be dispossessed until he has had an opportunity to try the action. The motion, therefore, will be granted, with $10 costs to abide the event. Motion granted, with $10 costs to abide event. (31 Misc. Rep. 627.) THOMPSON v. EASTON et al. (Supreme Court, Special Term, Onondaga County. May, 1900.) 1. CONTRACTS-BREACH-DAMAGES. Defendant agreed to pay plaintiff a certain sum in raspberry tips, to be delivered in a certain year, or, if impossible to be grown or delivered in that year, in the subsequent year or years. Held, that defendant was bound to deliver each year such quantities as he reasonably could, and could not wait till he had raised in one year a sufficient amount to fill the entire contract; and hence, having raised a portion of the amount the first year, and not having delivered the same, he was liable in damages for the value thereof, but not for the value of the entire quantity, since he still had the privilege of delivering the balance when grown. 2. SAME-ACTION-DEMAND. Where defendant agreed to deliver a certain quantity of plants in a certain year, or, if impossible to be grown or delivered, in the subsequent year or years, a demand on him for delivery was not a prerequisite to the commencement of an action against him for failure to deliver the quantity grown the first year. Action by Edwin G. Thompson against Samuel H. Easton and another. Judgment for plaintiff. George Barrow, for plaintiff. HISCOCK, J. The contract involved was in writing. It provides: "That in consideration of the surrender of all the claims that the said Edwin Thompson or his wife may have against Albert H. Easton, viz. notes, judg ments, mortgages, or claims of any kind whatsoever, the said S. H. Easton agrees to pay to said Edwin Thompson the sum of three hundred dollars, in the following manner, viz.: To raise raspberry tips or plants, and deliver to said Thompson, at the wholesale price of such plants, an amount to the value of three hundred dollars in the year first above written [1897], if he can; but if he cannot, from any cause, raise them in that year sufficient to amount to that sum, then he shall have the privilege of time in subsequent year or years to do so; said plants to be delivered on the premises of said S. H. Easton." And, again, said Thompson * * "Agrees to take of said S. H. Easton raspberry tips or plants to the value of three hundred dollars, to be delivered to him on said S. H. Easton's premises, and in payment for them to deliver to said S. H. Easton all claims Said plants to be received by him in the year first above written, or if, from any cause, they cannot be grown or delivered in that year, in the subsequent year or years." This contract was guarantied by the defendant Charles F. Easton in the language following: "I guaranty that the plants or tips mentioned in the within article be delivered in good marketable condition." Plaintiff performed his part of the agreement, and canceled and surrendered up his mortgages, etc. Defendants never delivered or offered to deliver, or were ready to deliver, to plaintiff any raspberry tips in 1897, but in the spring of 1898 did offer to deliver the same to him. I think it is a fair inference from the evidence that in the year 1897 the defendant Easton had raised, and had on hand, in the ground, good, fair marketable tips or plants, to the number of 10,000, which were fairly worth, at the wholesale price, from $12 to and 100 New York State Reporter $15 per 1,000, and which could have been reasonably paid upon or delivered under this contract. No demand was ever made upon defendants for the delivery of these plants before this action was commenced. Plaintiff claims that the failure to deliver the 10,000 marketable plants within the year 1897 was such a breach of contract upon their part as entitled him, without demand, to recover the entire sum of $300 and interest; and defendants, upon the other hand, claim that, under the contract quoted from, defendants were not bound to deliver any plants until they had ready for delivery plants to the amount and value of the entire sum of $300, and, furthermore, that no action could be brought without prior demand upon them. In my judgment, neither side is entirely right. The first question is whether, under the contract, defendants could, as claimed by them, wait until they had on hand, fairly marketable and ready for delivery, the entire amount and value of $300 worth of raspberry tips, or whether they were bound to deliver in the year 1897 as many such as they then had, and then to make up the deficiency from year to year as they reasonably could. It seems to me that the latter is the fairer construction and interpretation of this contract. There is little or no evidence in regard to the capacity which defendants had of producing these plants. Under the valuations given upon the trial, it would take 20,000 or upward to fill the contract. It might be that they would never be able, upon their place, to produce in one year such a number and amount as this, so as to fill their agreement in one year and by one delivery, and that in this way and for this cause they could indefinitely postpone the payment of plaintiff's claim. It would certainly be easier and within a more limited capacity to raise 8,000 or 10,000 or 12,000 plants in one year, and deliver them, and then fill up the deficiency in a year or two more. It would undoubtedly be entirely within the limits of reason that they should do this, and plaintiff could doubtless compel them to do it, and not be indefinitely postponed. In addition to this, the wording of the contract seems to bear this interpretation. The defendant S. H. Easton was to pay or deliver to plaintiff raspberry tips or plants, at the wholesale price of such plants, to value of $300, in the first year, 1897, if he could; but if he could not, from any cause, "raise them in that year sufficient to amount to that sum," then he was to "have the privilege or time in subsequent year or years to do so." Again, it was provided that, if the plants could not be grown and delivered in the year 1897, they were to be in the "subsequent year or years." Now, I think, the fair meaning of this is that Easton was to raise and deliver all the plants he could in the year 1897; that, if he could not make out the full amount in that year, then he was to make up the deficiency in the next year, if he could, and, again, if he could not make up the entire deficiency in the next year, then he was to do it in the following year, and so on; that this was the meaning of the phrase that, if the plants could not all be raised and delivered in the year 1897, it was to be done in the subsequent "year or years." The reasonable meaning of these words. seems to be that, if the plants could not all be raised in one year, then two or more years might be taken in which to fill out the amount; that the delivery might possibly extend through "years,” and not be completed in one year. If this reasoning is correct, then the Eastons were bound, under their contract, to deliver to plaintiff the 10,000 plants in the year 1897. They made default in this engagement. Under their contract, these plants were to be delivered at a specific place within a specific time, which was not done, and they became in default for not doing it, without any demand upon the part of the plaintiff. 9 Am. & Eng. Enc. Law (2d Ed.) 201. In addition to this, they were not prepared to deliver the plants even if the demand had been made upon the last day of December in that year, and the demand would have been nugatory. Upon this reasoning, plaintiff would be entitled to recover damages to the amount of the value of the plants which should have been so delivered. I do not think, however, that he is entitled to recover the entire sum of $300 by reason of this breach. After the payment and delivery of such plants as could be delivered in the year 1897, the time became indefinite within which the balance could be delivered. They were to be delivered as they could be raised, and I think that it then became incumbent upon plaintiff to make a demand upon the defendants before he could put them in default so as to bring an action for damages for failure to deliver any plants which could have been reasonably delivered. This he did not do. Upon the other hand, he declined to accept the plants from the defendants. 9 Am. & Eng. Enc. Law (2d Ed.) 201. The plaintiff's theory is that, by failure to deliver plants ready to be delivered in 1897, there was a breach and default upon the entire contract, but that does not seem to me to be so. Here was a note payable in installments by the delivery of certain personal property. Under the facts as I have found them, the first installment of 10,000 plants became due in 1897, and the defendants made default in its payment, and for that default an action is maintainable. The balance of the note, or the other installments, became due at some future indefinite time; and the failure to properly meet such further installments or obligations would be another breach, for which proper damages could be recovered. Findings and judg ment, therefore, may be prepared in favor of the plaintiff, and in accordance with the views herein before expressed, with costs. Judgment for plaintiff, with costs. (31 Misc. Rep. 607.) MILDENBERG et al. v. JAMES et al. (Supreme Court, Special Term, New York County. May, 1900.) 1. CORPORATIONS-SUBSCRIBERS TO STOCK-PROMOTERS-CAUSE OF ACTION. Where subscribers to corporate stock agreed with promoters to use their efforts to facilitate the organization of the corporation according to a certain plan, which contemplated particular remuneration to the promoters, in consideration of the transfer of shares which the promoters were to receive as part of their remuneration, and after the corporation's organization it completed a contract with the promoters for their services, without fraud, which was not so favorable to them as the remuneration contemplated by the plan of organization, the subscribers were thereby absolved from all liability to the promoters on their contracts with them. and 100 New York State Reporter 2. SAME JOINT DEMURRER-WHEN OVERRULED. Where several defendants demurred jointly to a complaint for failure to state a cause of action, and a good cause of action was stated against one of them, the demurrer must be overruled. Action by Samuel H. Mildenberg and others against Darwin R. James and others. Demurrer to the complaint. Overruled. E. H. Benn, for plaintiffs. Arthur J. Baldwin, for defendants demurrant. BISCHOFF, J. The plaintiffs, acting as promoters, procured the signatures of certain of the defendants to a subscription list which stated that each agreed to take a fixed number of shares of stock in a projected corporation; the agreement reciting that certain properties held by other corporations were to be acquired by this corporation, when formed. Contemporaneously an agreement was made between the plaintiffs and each subscriber whereby the subscriber practically engaged to use his influence towards completing the enterprise, and the plaintiff's promised, in their turn, to give the subscriber a certain amount of the stock which it was understood that the corporation, when formed, should turn over to them for their services as promoters. The corporation was formed under the name of the People's Telephone Company, but a contract in the exact terms of the understanding recited in the individual agreements was not made. The plaintiffs and the corporation did, however, conclude an agreement, unaffected by any element of fraud or mistake, covering the whole subject of the taking over of properties and of the compensation for plaintiffs' services, but there was a failure of performance; and this action is brought to annul the contract thus made, and to enforce the individual agreements of the several defendants, or, in the event of the corporation's agreement being held binding, to enforce that agreement against the defendants, and for an apportionment of damages sustained by the plaintiffs and by the corporations whose properties were to have been acquired and purchased. It is clear that the individual agreements of the subscribers, if sufficiently definite to give rise to any liability, were fully performed when the corporation offered its form of contract to the plaintiffs and they accepted it, and the failure of performance simply gave the plaintiffs their proper remedy for the breach. This contract was made with a full understanding of all the facts, as appears from the allegations, and there was no fraud inducing the plaintiffs' acceptance. True, it is alleged that the corporation afterwards endeavored to avail itself of a condition of the agreement in a fraudulent manner, as an excuse for nonperformance; but this fraud affected only the merits of a possible defense when sought to be set up by the corporation, and could afford no ground for setting aside the agreement itself. In its most favorable aspect, the complaint fails to disclose any cause of action against the defendant subscribers, and the determination that the pleading is insufficient as against them necessarily covers the points, also taken |