Waters v. de Mossin , 164 N.Y.S. 82 ( 1917 )

Scott, J.:

The purpose of this action is to enforce an alleged agreement between the six plaintiffs and the defendant de Mossin to the effect that all of the stock of the Victoria Oil Company held by said plaintiffs and defendant should be deposited and held by the New York Trust Company, to be used and dealt with by a syndicate directed by the plaintiff Waters who was designated as “syndicate manager.”

The original syndicate agreement, which was in writing, was dated October 28, 1915, and was by its terms to continue in force until July 1, 1916, unless Waters should sooner release the stock and direct its redelivery to the depository stockholders. Several other written agreements were subsequently made, the result of which was to extend the syndicate agreement to December 31, 1916.

The present action is based upon the allegation that on October 26, 1916, a verbal agreement was made by all of the depository stockholders including the defendant de Mossin that the deposited stock should continue to be held under said syndicate agreement for a period of six months from and after January 1, 1917.

The defendant de Mossin denies that he ever agreed to the last-mentioned extension and seeks to withdraw his stock from deposit in the trust company. The purpose of the injunction now sought is to prevent him from so doing.

It is manifest that the court should not interfere by in june tion to prevent a person from exercising control over his own property, in consequence of an alleged agreement to commit the control thereof to another, unless the agreement is clearly and unequivocally proven and, therefore, to justify the issuance of the injunction which plaintiffs ask it must be clearly shown that de Mossin did, in fact, agree that his stock should remain on deposit and under the control of the syndicate manager after January 1, 1917, when the last written agreement, by its terms, expired.

The complaint does allege, in explicit terms, that on October 26, 1916, all of the plaintiffs, and the defendant de Mossin did so agree.

When we come to examine the affidavits used to support the motion for an injunction pendente lite we find that they fall short of alleging a definite agreement on the part of de Mossin. The most they say is (and they all agree on this point) that a meeting of the depository stockholders was held at which the extension of the syndicate agreement was discussed and that de Mossin, as well as plaintiffs, stated that they were “willing and desirous” that the deposit of stock should extend beyond January 1, 1917. This is by no means equivalent to an allegation that defendant then presently agreed that the syndicate arrangement should be extended. It suggests no more than the expression of a willingness to make such an agreement— a willingness which so far as appears never crystallized into an actual agreement. There are two circumstances in the case that seem to make it reasonable that the allegation should be read in the latter sense. One is that the parties had been careful to reduce all earlier agreements on the subject to formal writings, and no reason is shown why, on this last occasion, they should have contented themselves with an oral agreement. From the circumstance that the conversation at which defendant de Mossin is said to have expressed himself as “willing and desirous” to extend the syndicate arrangement took place more than two months before the then pending agreement was to terminate, it seems more probable that the conversation involved, as the affidavit says, merely an expression of willingness to make a new agreement, rather than a definite completed agreement.

The second circumstance is that when in February, 1917, de Mossin sought to withdraw 10,000 shares of the stock from the stock company, the plaintiff Waters, the syndicate manager, consented thereto. He offers no explanation why he did this, but a very plausible explanation is that he did not then consider that de Mossin had ever actually agreed to continue the deposit.

We cannot escape the conclusion that the allegation so often repeated in the moving affidavits that de Mossin stated that he was “willing and desirous” to extend the syndicate agreement was drawn with careful intention, and that any allegation that de Mossin actually agreed was omitted with like care. The gentlemen concerned in the case for the plaintiff, both as principals and attorneys, are intelligent and skillful and can scarcely be accused of using language carelessly. They must have known that in order to entitle themselves to an injunction it was necessary to show that de Mossin actually agreed to extend the syndicate, and they must have also been aware that an actual agreement was not proved by evidence of an expression of willingness to make an agreement.

As has been said, it is a serious matter to deprive a man, against his will, of the beneficial use of his property, and the court should not lend itself to an effort to do this except upon clear and unequivocal evidence that he had agreed to be so deprived. The evidence on that subject submitted by the plaintiffs is neither clear nor unequivocal.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Smith and Sheabn, JJ., concurred; Clarke, P. J., and Laughlut, J., dissented.