Walton v. Rafel , 7 Misc. 663 ( 1894 )

PRYOR, J.

The prompt disposition of the appeal, entreated by counsel on the argument, precludes the possibility of an opinion at commensurate with the thoroughness of the able and exhaustive briefs with which we are favored We must be content barely to state the grounds of our decision. Conceding, for argument,- the position of the respondents, that the instrument under examination is not a lease, still we.are unable to detect in its terms any indication of such personal trust and confidence reposed in the Kalisldes as would render the contract unassignable by them. Every party to an agreement confides that the other will perform it; else, surely, he would not accept the other’s engagement. Beyond this, what is there on the face of the instrument to reveal a reliance on the peculiar character of the Kalisldes ? Nothing is said of their personal qualifications, nor of their repute in the community, nor of any circumstance that would distinctively commend them to the confidence of the respondents Neither is it apparent that what the Kalisldes undertake may not be as well performed by another as by themselves. It may not be urged that one succeeding the Kaliskies, by assignment or otherwise, might, because of the intimate relations with the respondents, afflict them with immeasurable embarrassment and injury, since against such a contingency they have provided abundant precaution in the instrument,—a security as available and effectual against an assignee as between the parties themselves. The assignee of the contract must take it as well with its burdens as its benefits. But two provisions in the instrument seem to us conclusive against the construction that the relation it creates is to subsist only between the Kaliskies and the respondents. The ninth article stipulates that, should the respondents sell or otherwise dispose of their business, the Kaliskies may cancel the agreement. Now, if the agreement be one of personal trust and confidence of such sort that its obligations are reciprocally due between the parties, and to none else, then, manifestly, whenever the respondents should retire from the business during the stipulated term, the contract would be broken, and the right of the Kaliskies to cancel it would be clear and indisputable. Why, then, an express provision for such right, unless upon the hypothesis that the right would not otherwise exist,—i. e. except upon the hypothesis that the contract and its obligation on the Kaliskies would survive in favor of the successors and assigns of the respondents? The twelfth article is still more explicit to the effect that the relations and obligations it creates may subsist between the respondents and the assignee of the Kaliskies. It stipulates that “this agreement is to bind the parties hereto, and their legal representatives.” If, as respondents contend, the contract was one of personal trust and confidence, then would it be terminated upon the death of either party, and would not continue to bind his legal representatives. Lacy v. Getman, 119 N. Y. 109, 115, 116, 23 N. E. 452; Greenburg v. Early (Com. Pl. N. Y.) 23 N. Y. Supp. 1009. On the other hand, it is only a contract which does not involve personal confidence that may be enforced against the estate of the deceased party. Bish. Cont. § 861. By this provision the benefits and the burdens of the contract devolve upon the representatives of the parties; and, “in all cases when the executor or administrator would succeed to the rights and liabilities of a deceased party to a contract, the contract is assignable by the act of the parties.” Devlin v. Mayor, etc., 63 N. Y. 8, 16. Descendibility and assignability are convertible terms. Zabriskie v. Smith, 13 N. Y. 322. We see no escape from the conclusion that the Kaliskies’ interest in the contract is transferable.

We perceive in the agreement no element of a partnership inter sese, nor as to third persons. Here is no common business or common stock, but each party retains his own stock and his own business. Whatever sales are made by the respondents are made expressly “as agents of the parties of the second part,”—that is, the Kaliskies; and whatever money is received by the respondents is to be paid over to the Kaliskies, less the percentage on sales, which, retained “in lieu of rent,” is ineffectual to constitute a partnership. Richardson v. Hughitt, 76 N. Y. 55; Cassidy v. Hall, 97 N. Y. 159; Bank v. Gallaudet, 122 N. Y. 655, 657, 25 N. E. 909. From the conclusion that the interest of the Kaliskies under the agreement was assignable, it results that the judgment is erroneous. Judgment reversed, and cause remanded to the court below for entry of final order in favor of appellant, pursuant to the stipulation of the parties.