Opinion
Argued June 7, 1910
Decided October 11, 1910
John C. Wait for appellants. Charles Haldane and David McClure for respondents.
Although the findings of fact and conclusions of law are not signed at the end thereof in the usual form, and are not supplemented by a direction for the entry of judgment in accordance therewith, each finding and conclusion is marked found by the court, and upon them judgment has been entered without objection from counsel for the plaintiffs. Since both parties have treated the entry of judgment as regular, we must so regard it for the purposes of this appeal. The findings of fact clearly support the conclusions of law, and the unanimous affirmance of the judgment entered upon them is, therefore, conclusive upon this court, except as to certain matters which were left undecided. As the decision now stands, the defendants have title to lands which in equity belong to the plaintiffs. Although the court has found that the failure to form a corporation was not the fault of the defendants, and that the latter have quarried no more stone than they were entitled to use in the completion of their contract for the construction of the Croton dam, it is obvious that a mere dismissal of the complaint simply paves the way to further litigation over matters which should be disposed of in this suit. The agreement between the parties cannot be specifically enforced in equity because it embraces a covenant to form a corporation which can never be formed unless the parties unite upon a number of details which are not specified in the agreement. While the defendants are not responsible for this condition, the fact remains that they hold title to land which belongs to the plaintiffs if the agreement is not carried out. It is obviously impossible to make any judgment that will fully restore the parties to their original positions, but it is quite as clearly the duty of the court to go as far in that direction as it can.
We think the judgment of the Appellate Division should be reversed and the judgment of the Special Term modified so as to direct a re-conveyance by the defendants to the plaintiffs of the Field farm; and a re-assignment of the contract for the 15 acres of the Horton farm upon condition that the plaintiffs reimburse the defendants for any payments they may have made upon the contract for that part of the Horton farm.
The judgment should be further modified so as to direct an accounting for rents collected by the defendants, for the trial court has found that the defendants erected tenements upon said premises and collected rents therefrom, for which they have not accounted to the plaintiffs.
Although the judgment as thus modified probably falls far short of doing ideal justice between the parties, the nature of the contract and the conclusive character of the judgment as far as it goes make it impossible for the court to do more. The reversal and modification should be without costs of this appeal to either party.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment accordingly.