Nadal v. Childs Securities Corp. , 18 A.D.2d 375 ( 1963 )

Bergan, J.

Plaintiff seeks to avoid the effect of a release signed by him for a good consideration, which in terms discharged defendant, on the ground of defendant’s fraud in misrepresenting the instrument of release. The court at Special Term has dismissed the complaint pursuant to subdivision 6 of rule 107 of the Buies of Civil Practice.

Plaintiff had a claim against the owners of real estate in the sum of $25,000 as a finder’s fee. He settled the claim for $7,500 upon the execution of an agreement between the owners and defendant as purchaser.

The agreement recited that the owners (sellers) should pay plaintiff a finder’s fee of $7,500 and by addendum provided that the defendant should indemnify the sellers from any claim by plaintiff in excess of $7,500. It also provided that the defendant should be responsible if any other demand of brokerage or for a finder’s fee were made based on a claimed furnishing of information to defendant.

Attached to the agreement between the owners and defendant was a release executed by plaintiff. In the instrument of release plaintiff agreed to the contract provisions between sellers and buyers for the payment by the sellers of $7,500.

The text of the release was as follows: “ Payment of the same shall constitute a full and complete settlement of all claims, finders’ fee, brokerage commission or any other claim of the undersigned and shall act as a complete and general release to all parties of this Agreement and to the property which is the subject of this Agreement.”

¡ Plaintiff claims that he was “ told and I believed ” that the agreement was “ between myself and the sellers ” and that the receipt of $7,500 “ would release the sellers and only the sellers and no one else.” He further claims that the statements “ as to the meaning and import of that agreement ’ ’ were made by an officer of defendant corporation and that he “ relied solely upon ” such representations.

The agreement is plainly not an agreement “ between myself and the sellers ’ ’ and it is not a release of ‘ ‘ the sellers and only the sellers ”. It is an agreement among several parties, including the defendant, and it expressly releases “ all parties of this agreement ” and the property the “ subject of ” the agreement.

No man who could read and understand English was entitled to accept a ‘ ‘ meaning and import ’ ’ of these words diametrically opposed to the text. A different rule applies to the illiterate or the person unfamiliar with the English idiom (Pimpinello v. Swift & Co., 253 N. Y. 159), but that rule does not embrace this plaintiff (cf. Northridge Coop. v. 32nd Ave. Corp., 2 N Y 2d 514, 528) and the ordinary result obtains that he is “ conclusively bound ” (Pimpinello, p. 162).

Although, of course, there may sometimes be open factual questions on the scope of a general release and the intent with which it is executed, a release and disavowal of liability expressed as part of a contract and manifestly tied into the very subject matter of the contract and affecting its parties leaves open no such factual question (Oxford Commercial v. Landau, 12 N Y 2d 362).

Moreover, after the release had been executed by plaintiff and he was in possession of the sellers’ check for $7,500 which contained this legend, “ Payment in full for all compensation and expense in connection with sale * * * as per agreement * * * between said Sellers and Childs Securities Corporation and release heretofore given by payee ”, plaintiff wrote the defendant’s representative that “I cannot accept the check in the amount of $7,500 bearing the endorsement, paid in full for all compensation ”.

Nevertheless with clearly grasped knowledge then of the scope of the release and the effect of the indorsement and collection of the check, he presented it and it was paid. This amounted to a ratification of the release (Nassoiy v. Tomlinson, 148 N. Y. 326).

It is suggested from certain rather obscure words in the plaintiff’s affidavit that there was some sort of novation or new agreement effected between the plaintiff and defendant, quite independent of the finder’s fee basis of the original claim. These words indicate that to induce plaintiff to sign the release pursuant to which the sellers were to pay plaintiff $7,500, defendant undertook to pay plaintiff another $7,500 for signing the release.

This aspect of plaintiff’s affidavit rests on these paragraphs: The sellers refused to pay me a finder’s fee in the sum of $25,000; they agreed to pay only $7500. and the contract so provided. The sellers also insisted that I sign an agreement with them agreeing to accept a finder’s fee of $7500. In order to induce me to accept the $7500. fee from the sellers, Mr. Aird [defendant’s representative] told me that Childs Securities Corporation would pay me $7500. and he also reaffirmed at that time that I would be employed to supervise the construction for which I was to receive a fee of 5% plus 1% for expenses.”

That there was a separate liability effected by an agreement by defendant to pay $7,500 to induce plaintiff to sign the release is not argued by plaintiff in his brief in this court. Such a theory of separate liability is not only not pleaded in the complaint; it is quite inconsistent with the complaint and ruled out of consideration by the words of the pleading itself.

The complaint alleges that defendant’s agreement to pay $7,500 was for a finder’s fee and was made before negotiations were entered into for the sale of this property to defendant and hence, of course, could not possibly be the basis of a consideration of inducement to plaintiff to sign the release.

Specifically, the complaint describes the agreement by defendant to pay $7,500; and then pleads that "thereafter ’ ’ defendant entered into negotiation for the purchase. The independent consideration for the delivery of a release; or the exclusion from the scope of a release of matters or claims maturing in the future, considered in such cases as Andrews v. Brewster (124 N. Y. 433), Cahill v. Regan (5 N Y 2d 292), and Farnham v. Farnham (204 App. Div. 573), have no relevancy here.

The order and judgment dismissing the complaint should be affirmed, with costs.