Opinion
11-01-1887
STEVENS v. ROSS.
C. & R. W. Parker, for complainant. James P. Northrop, for defendant.
On bill for relief. On motion to dissolve preliminary injunction.
On April 2, 1886, John D. Crimmins and George L. Schofield entered into an agreement by which Crimmins agreed to sell to Schofield, and the latter agreed to buy, 10 lots of land situate in New York city, for $46,000, the money to be paid on or about July 21, 1886. The complainant, John Stevens, a real-estate agent, procured the defendant, William O. Ross, also a real-estate agent, to join with him and purchase the above contract from Schofield, Ross advancing the money with which to purchase. Stevens, the complainant, says that it was agreed between him and Ross that they should jointly own the said contract, and should jointly share all profits that might arise from the possession thereof, and, to prove that such was the agreement, produced a letter from Ross, reading thus: "NEW YORK, May 3, 1886.
"John Stevens, Esq.—MY DEAR SIR: Referring to a certain assignment this day by Mr. George Schofield to me of a contract, dated the twenty-second April last, between John D. Crimmins and the said George Schofield, relating to ten lots, situate on the southerly side of 114th street, 100 feet east of 8th avenue, city, it is hereby distinctly understood and agreed that this purchase is a joint transaction—involving you equally with myself—that the $2,000 I have already paid is the total sum I am to be held responsible for, and that the said purchase has been made solely in the expectation of your being able to sell, either directly or indirectly, the property aforesaid, prior to the expiration of the contract in question, which expires the twenty-first day of July, 1886, at an advance upon the present purchase price. It is further agreed between us that we are to share equally in any profit or loss resulting from this transaction, and that such a settlement shall be made, either when a sale is effected or when the present contract expires. That I am to be allowed interest upon the $2,000 in case any profit results, and that we are to share andshare alike in all commissions you may receive, directly or indirectly, during your handling of this property while I control it.
"I remain yours, very truly, W. O. Ross."
On June 10, 1886, Stevens sold the contract for an advance of $1,500, but Ross refusing to consent to the sale, it fell through. Stevens considered the agreement as still existing, and made efforts to sell the same until June 2, 1887, when he learned that Ross had made sale of the lots, and delivered deeds to the purchaser, and that the advance made on the sale was about $10,000, and the net profit coming to Stevens as his share amounted to $2,282.22. This amount Stevens demanded, but Ross refused to pay him. As a part consideration of the purchase money Ross accepted a mortgage on the lots for $7,611.44. Stevens asks the court to decree that he is entitled to the share above mentioned, as his part of the profits, and a preliminary injunction was granted pending the decision of the cause, enjoining Ross from parting with the mortgage mentioned, as the complainant asserted that he was not responsible financially. Ross admits all that Stevens claims about joint ownership, and mutually sharing of the profits, but says that it was only to continue until the date of the expiration of the agreement to sell, July 21, 1886; that after that time all arrangements ceased; that, to save his $2,000, he was forced to take the property, which he did, and the title was conveyed to him; that Stevens never made any effort to sell the land after that date, July 21st; that he consented to the refusal to accept the $1,500 advance made to him, Stevens; that the total profits in the whole transaction were not over $2,550; that the preliminary injunction should be dissolved, as he is a responsible party financially; and that since July 21, 1886, he, Stevens, has really abandoned any claim to profits under the agreement.
C. & R. W. Parker, for complainant. James P. Northrop, for defendant.
VAN FLEET, V. C. There are several expressions in the defendant's letter of May 3, 1886, going to show that the purchase made by the defendant of Schofield was a joint venture, into which the complainant and defendant entered with the understanding that they were to share profits and bear losses equally. The first is: "It is hereby distinctly understood and agreed that this purchase is a joint transaction, involving you equally with me;" next the letter says: "It is further agreed between us that we are to share equally in any profit or loss resulting from this transaction;" and then it says that the defendant is to share in all the commissions which the complainant may receive, directly or indirectly, from handling the land while the defendant has control of it. The plain import of the letter is that the purchase of the contract was a joint venture, in which the complainant and defendant were to share benefit and burdens equally. There is nothing in it which shows clearly that it was the understanding that if the complainant failed to effect a sale of the land, prior to the twenty-first of July, 1886, his rights in the venture were to cease; on the contrary, the conduct of the parties shows, I think, quite clearly, that such was not their understanding. If it had been, it is manifest that the complainant would have insisted that the offer of $1,500, for the repurchase of the contract, should be accepted. I am of opinion that the venture was a joint one, and it follows, consequently, that the mortgage is joint property, unless it be true, as the defendant alleges, that the complainant, prior to July 21, 1886, relinquished or abandoned the venture. The claim on the part of the defendant that he did is new matter, which the defendant must establish, by a clear preponderance of proof, to be entitled to prevail. The burden of proof on this point is on him. Viewing the case in this aspect, it is clear that the equity upon which the complainant's right to the injunction rests is not denied in such manner as to entitle the defendant to a dissolution.
His motion to dissolve must be denied with costs.